The International Journal of Transitional Justice

23
The International Journal of Transitional Justice, 2014, 1–23, doi:10.1093/ijtj/iju004 Rethinking Transitional Justice, Redressing Indigenous Harm: A New Conceptual Approach Jennifer Balint,* Julie Evans y and Nesam McMillan** Abstract 1 Transitional justice has become the dominant international framework for redressing mass harm. To date, however, transitional justice has not adequately accounted for past colonial harms and their ongoing effects. How to confront and redress structural harm has been beyond the purview of its framework. Taking ongoing historical and structural harms against indigenous peoples in Australia as a reference point, we draw on the insights of settler colonial theory to propose a new justice model for transitional justice. We argue that a commitment to structural justice will enhance the ability of transitional justice to recognize and address structural injustice in settler colonial and other contexts. By elaborating the concept of structural justice with reference to postcolonial and settler colonial theory, this article sets out to support the development of a more robust theory of transitional justice. Keywords: settler colonialism, postcolonialism, structural injustice, structural justice, Australia Introduction The colonial injustices experienced in settler colonial states have generally re- mained beyond the purview of transitional justice. Reflecting a broader trend of conceptualizing the West as the locus and agent of justice and human rights * Lecturer in Socio-Legal Studies, School of Social and Political Sciences, University of Melbourne, Australia. Email: [email protected] y Senior Lecturer in Criminology, School of Social and Political Sciences, University of Melbourne, Australia. Email: [email protected] ** Lecturer in Global Criminology, School of Social and Political Sciences, University of Melbourne, Australia. Email: [email protected] 1 The authors would like to thank Maria Rae for her invaluable research assistance and the IJTJ editorial board and anonymous reviewers for their engaged and thoughtful comments that greatly enriched this article. The article is part of a broader collaborative Australian Research Council Linkage Project LP110200054 between indigenous and non-indigenous researchers, education experts, performance artists, community members and government and community organiza- tions to promote new modes of publicly engaging with historical and structural injustice through research, education and performance. See, Minutes of Evidence Project, http://minutesofevidence. com. ! The Authors (2014). Published by Oxford University Press. All rights reserved. For Permissions, please email [email protected] by guest on November 3, 2015 http://ijtj.oxfordjournals.org/ Downloaded from

description

Looking at indigenous harm and transitional justice. Examining the role of TJ in offering redress and helping to transition to a positive society.

Transcript of The International Journal of Transitional Justice

Page 1: The International Journal of Transitional Justice

The International Journal of Transitional Justice 2014 1ndash23doi101093ijtjiju004

Rethinking Transitional JusticeRedressing Indigenous Harm A NewConceptual Approach

Jennifer Balint Julie Evansy

and Nesam McMillan

Abstract1

Transitional justice has become the dominant international framework for redressing

mass harm To date however transitional justice has not adequately accounted for past

colonial harms and their ongoing effects How to confront and redress structural harm

has been beyond the purview of its framework Taking ongoing historical and structural

harms against indigenous peoples in Australia as a reference point we draw on the

insights of settler colonial theory to propose a new justice model for transitional justice

We argue that a commitment to structural justice will enhance the ability of transitional

justice to recognize and address structural injustice in settler colonial and other contexts

By elaborating the concept of structural justice with reference to postcolonial and settler

colonial theory this article sets out to support the development of a more robust theory

of transitional justice

Keywords settler colonialism postcolonialism structural injustice structural justice

Australia

IntroductionThe colonial injustices experienced in settler colonial states have generally re-

mained beyond the purview of transitional justice Reflecting a broader trend

of conceptualizing the West as the locus and agent of justice and human rights

Lecturer in Socio-Legal Studies School of Social and Political Sciences University of MelbourneAustralia Email jbalintunimelbeduau

y

Senior Lecturer in Criminology School of Social and Political Sciences University of MelbourneAustralia Email jevansunimelbeduau

Lecturer in Global Criminology School of Social and Political Sciences University of MelbourneAustralia Email nesamcmunimelbeduau

1 The authors would like to thank Maria Rae for her invaluable research assistance and the IJTJeditorial board and anonymous reviewers for their engaged and thoughtful comments that greatlyenriched this article The article is part of a broader collaborative Australian Research CouncilLinkage Project LP110200054 between indigenous and non-indigenous researchers educationexperts performance artists community members and government and community organiza-tions to promote new modes of publicly engaging with historical and structural injustice throughresearch education and performance See Minutes of Evidence Project httpminutesofevidencecom

The Authors (2014) Published by Oxford University Press All rights reservedFor Permissions please email journalspermissionsoupcom

by guest on Novem

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nloaded from

that needs to respond to the conflict and abuses occurring in non-western states2

transitional justice has not ndash until recently ndash been used as a framework to consider

the injustices that have occurred in western liberal democratic countries Liberal

democratic societies have been positioned as the desired end points of transitional

justice and transitional justice lsquohas tended to ignore the extent to which liberal

democracies themselves might be considered in need of ldquopostconflictrdquo reconcili-

ation and restorative justicersquo3 Indigenous individuals and collectivities have of

course been active throughout time in drawing attention to the injustices arising

from colonialism4 While their activism has produced groundbreaking commit-

ments in international human rights law through the UN Declaration on the

Rights of Indigenous Peoples and the UN Permanent Forum on Indigenous

Issues the extensive and enduring harms caused by settler colonial practices

and policies in countries such as Australia New Zealand Canada and the US

have not constituted the traditional focus of transitional justice discourse and

practice5 Instead western countries continue to appear as the actors that can best

support transitional justice processes in postconflict countries such as East Timor

Rwanda and Libya rather than the subjects of transitional justice that might need

to reckon with their own problematic pasts

In recent times however a greater interest has emerged in connecting transi-

tional justice and the historical experiences of indigenous peoples in settler co-

lonial states Arguably this is attributable in part to the recent use in such states

of political-legal processes that could be deemed transitional justice mechanisms

including truth commissions reparations apologies and prosecutions6 Centred

around goals such as acknowledgement and reconciliation in the case of the

former and accountability in the case of prosecutions these initiatives have

been positioned by governments ndash implicitly rather than explicitly ndash in line

with transitional justice rhetoric as ways of addressing the injustices of the past

in order to provide the conditions for a more just future They include initiatives

such as the Truth and Reconciliation Commission of Canada (inquiring into the

system of residential schools for Aboriginal people that existed in Canada until

1996) and the Australian National Inquiry into the Separation of Aboriginal and

2 Makau W Mutua lsquoSavages Victims and Saviours The Metaphor of Human Rightsrsquo HarvardInternational Law Journal 42 (2001) 201ndash245 Anne Orford Reading Humanitarian InterventionHuman Rights and the Use of Force in International Law (Cambridge Cambridge University Press2003)

3 Chris Cunneen lsquoState Crime the Colonial Question and Indigenous Peoplesrsquo in SupranationalCriminology Towards a Criminology of International Crimes ed Alette Smeulers and RoelofHaveman (Antwerp Intersentia 2008) 159 See also Anne Orford lsquoCommissioning theTruthrsquo Columbia Journal of Gender and Law 15(3) (2006) 851ndash883

4 In the Australian case see John Maynard Fight for Liberty and Freedom The Origins of AustralianAboriginal Activism (Canberra Aboriginal Studies Press 2007) Saliha Belmessous ed NativeClaims Indigenous Law against Empire 1500ndash1920 (Oxford Oxford University Press 2011)

5 A Dirk Moses lsquoOfficial Apologies Reconciliation and Settler Colonialism Australian IndigenousAlterity and Political Agencyrsquo Citizenship Studies 15(2) (2011) 145ndash159

6 Courtney Jung lsquoCanada and the Legacy of the Indian Residential Schools Transitional Justice forIndigenous Peoples in a Nontransitional Societyrsquo in Identities in Transition Challenges forTransitional Justice ed Paige Arthur (Cambridge Cambridge University Press 2011)

International Journal of Transitional Justice 2014 1ndash23

2 J Balint J Evans and N McMillan

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Torres Strait Islander Children from Their Families the governmental apologies

delivered in Canada and Australia regarding certain policies in these nationsrsquo

colonial histories7 the reparations funds established in select Australian jurisdic-

tions such as Tasmania for distinct colonial injustices8 and broader state recon-

ciliation initiatives such as the Australian Council for Aboriginal Reconciliation

which was a key recommendation of the 1991 Royal Commission into Aboriginal

Deaths in Custody9

These initiatives are mirrored by growing academic and practitioner interest in

the significance of transitional justice for addressing settler colonial harms10 This

article draws and builds upon the resulting scholarship to open out onto a

broader consideration of what insights might stem from bringing the fields of

transitional justice and settler colonial theory into relation and in particular how

this may strengthen transitional justice in addressing structural injustice

As a programme of political-legal initiatives in times of transition from state-

sanctioned harm with the capacity to design institutional reform processes that

hold legitimacy and maintain continuity while initiating change transitional

justice has strengths that can be built upon While it has conventionally been

located in moments of political change to enable and shape political transition

through legal measures11 the flexibility and potentiality of transitional justice as a

broader justice model makes it an attractive approach for addressing the historical

injustices of settler colonialism that to date have not been addressed as harms We

focus here on the structural nature of such harm that transitional justice in its

limited temporal response has not addressed

In this article we seek to revise conventional transitional justice approaches by

considering the injustices experienced by indigenous peoples in the settler colo-

nial state of Australia as a structural harm We hope that this reconceptualization

7 Prime Minister of Canadarsquos Office lsquoPrime Minister Harper Offers Full Apology on Behalf ofCanadians for the Indian Residential Schools Systemrsquo 11 June 2008 httpwwwpmgccaeng-mediaaspcategory=2ampfeatureId=6amppageId=46ampid=2149 (accessed 24 February 2014) HumanRights and Equal Opportunity Commission Bringing Them Home The lsquoStolen Childrenrsquo Report(1997) Australian Government lsquoApology to Australiarsquos Indigenous Peoplesrsquo 13 February 2008httpaustraliagovauabout-australiaour-countryour-peopleapology-to-australias-indigen-ous-peoples (accessed 24 February 2014)

8 Maria Rae lsquoWhy Tasmania Adopted the International Norm of Reparations in Compensating theStolen Generationsrsquo (MA thesis University of Melbourne 2011)

9 Indigenous Law Resources lsquoRoyal Commission into Aboriginal Deaths in Custodyrsquo httpwwwaustliieduauauotherIndigLResrciadic (accessed 24 February 2014)

10 Jung supra n 6 Michelle Bonner and Matt James lsquoThe Three Rrsquos of Seeking Transitional JusticeReparation Responsibility and Reframing in Canada and Argentinarsquo International IndigenousPolicy Journal 2(3) (2011) 1ndash29 Damien Short Reconciliation and Colonial Power IndigenousRights in Australia (Aldershot Ashgate 2008) Orford supra n 3 International Center forTransitional Justice Truth and Memory Strengthening Indigenous Rights through TruthCommissions A Practitionerrsquos Resource (2012) See also the recent conferences and symposialsquoStrengthening Indigenous Rights through Truth Commissionsrsquo (International Center forTransitional Justice New York NY July 2011) lsquoTruth Commissions and Indigenous PeoplesLessons Learned Future Challengesrsquo (UN Permanent Forum on Indigenous Issues New York NY15 May 2011) lsquoIndigenous Rights and Transitional Justicersquo (Australian National UniversityCanberra Australia 2011)

11 See Ruti G Teitel Transitional Justice (Oxford Oxford University Press 2000)

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Rethinking Transitional Justice Redressing Indigenous Harm 3

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offers new possibilities for understanding structural injury and responding to the

historical injustices that exist in settler colonial states including through opening

up to indigenous worldviews and jurisprudences rather than simply continuing to

privilege western frameworks (including ameliorative transitional justice

approaches)12 In so doing we build on the work of other scholars who have

sought to extend transitional justice frameworks beyond their originary contexts

of application and to revise the concept of lsquojusticersquo (as transformative and dis-

tributive) in the context of transitional justice13 We consider the strengths and

limitations of the conceptualization of transitional justice as a temporal response

brought about by political transition and the observation of transitional justice as

a use of law in enabling political change14 By elaborating the concept of structural

justice with reference to settler colonial theory this article sets out to support the

development of a more robust theory of transitional justice in relation to post-

conflict and postcolonial contexts more generally

The article begins with a consideration of conceptual constraints within the

transitional justice framework that affect its ability to address structural injustices

particularly those resulting from colonialism We then discuss how settler colo-

nial theory may address some of these limitations We consider the empirical

situation in Australia in order to explicate the complexity of structural injustice

and draw on historical and theoretical analysis to identify the nature scope and

purpose of the injustices visited upon indigenous peoples whose initial dispos-

session and continuing marginalization have helped constitute and maintain the

Australian state We ultimately trace the conceptual contours of a revised tran-

sitional justice model that raises new possibilities for thinking about what a com-

mitment to justice a new structural justice may require

12 On the importance of establishing lawful relations in settler societies see Christine Black ShaunMcVeigh and Richard Johnstone lsquoOf the Southrsquo Griffith Law Review 16(2) (2007) 299ndash309 andpassim Nin Tomas lsquoMaori Concepts and Practices of Rangatiratanga ldquoSovereigntyrdquorsquo inSovereignty Frontiers of Possibility ed Julie Evans Ann Genovese Alexander Reilly and PatrickWolfe (Honolulu HI University of Hawaii Press 2013) Taiaiake Alfred Wasase IndigenousPathways of Action and Freedom (Peterborough Broadview 2005)

13 Rama Mani lsquoDilemmas of Expanding Transitional Justice or Forging the Nexus betweenTransitional Justice and Developmentrsquo International Journal of Transitional Justice 2(3) (2008)253ndash265 Lisa J Laplante lsquoTransitional Justice and Peace Building Diagnosing and Addressing theSocioeconomic Roots of Violence through a Human Rights Frameworkrsquo International Journal ofTransitional Justice 2(3) (2008) 331ndash355 Wendy Lambourne lsquoTransitional Justice andPeacebuilding after Mass Violencersquo International Journal of Transitional Justice 3(1) (2009)28ndash48 Ismael Muvingi lsquoSitting on Powder Kegs Socioeconomic Rights in TransitionalSocietiesrsquo International Journal of Transitional Justice 3(2) (2009) 163ndash182 Zinaida MillerlsquoEffects of Invisibility In Search of the ldquoEconomicrdquo in Transitional Justicersquo InternationalJournal of Transitional Justice 2(3) (2008) 266ndash291

14 See in particular Teitel supra n 11 Luc Huyse lsquoJustice after Transition On the Choices SuccessorElites Make in Dealing with the Pastrsquo Law and Social Inquiry 20(1) (1995) 51ndash78 Martha MinowBetween Vengeance and Forgiveness Facing History after Genocide and Mass Violence (Boston MABeacon 1998) Neil J Kritz ed Transitional Justice How Emerging Democracies Reckon withFormer Regimes Country Studies 3 vols (Washington DC US Institute of Peace Press 1995)Priscilla B Hayner Unspeakable Truths Facing the Challenge of Truth Commissions (New YorkRoutledge 2002)

International Journal of Transitional Justice 2014 1ndash23

4 J Balint J Evans and N McMillan

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Transitional Justice and Structural HarmDescribed by Rosemary Nagy as a lsquoglobal projectrsquo15 transitional justice now con-

stitutes a dominant international framework for conceptualizing and pursuing

redress for systematic violations of human rights including military rule and civil

war genocide and widespread oppression It emerged as a discrete field in the late

1980s through the study of the role of law in times of political transition

prompted by the use of legal and quasijudicial responses to the end of military

rule in societies in South and Central America and the collapse of Communism in

Eastern and Central Europe16 Ruti Teitel argues that law functions differently in

times of political upheaval lsquoIn its ordinary social function law provides order and

stability but in extraordinary periods of political upheaval law maintains order

even as it enables transformationrsquo17 This function of law in enabling transform-

ation has become the cornerstone of studies of transitional justice18 and the

framework is now widely employed as an approach to the use of law and justice

in the immediate aftermath of mass harm

As transitional justice has consolidated into an academic field and mode of

practical intervention it has increasingly been subject to critical attention

Commentators have illustrated the contradictory imperatives that characterize

transitional justice approaches19 and sought to broaden the fieldrsquos mandate and

scope beyond the provision of once-off justice measures focused largely on indi-

vidual accountability and the protection of civil and political rights A prominent

critique which is of particular significance to our consideration of the potential

relevance of transitional justice to settler colonial injustices has focused on the

fieldrsquos inadequate attention to the deeper socioeconomic and structural causes

and consequences of conflict20 Transitional justice has continued mostly to

operate in accordance with an individualistic legal framework without facilitating

a deep engagement with structural injustices and the types of interventions

needed to address them As a temporal response to political transition the field

has engaged little with broader long-term structural inequities and harms

15 Rosemary Nagy lsquoTransitional Justice as Global Project Critical Reflectionsrsquo Third WorldQuarterly 29(2) (2008) 275ndash289

16 For a detailed account of the fieldrsquos emergence see Paige Arthur lsquoHow ldquoTransitionsrdquo ReshapedHuman Rights A Conceptual History of Transitional Justicersquo Human Rights Quarterly 31(2)(2009) 321ndash367 Bronwyn Leebaw lsquoThe Irreconcilable Goals of Transitional Justicersquo HumanRights Quarterly 30(1) (2008) 95ndash118

17 Teitel supra n 11 at 618 See ibid Kritz supra n 14 Hayner supra n 14 Huyse supra n 14 Minow supra n 14 Naomi

Roht-Arriaza and Javier Mariezcurrena eds Transitional Justice in the Twenty-First CenturyBeyond Truth versus Justice (Cambridge Cambridge University Press 2006) Chandra LekhaSriram Confronting Past Human Rights Violations Justice vs Peace in Times of Transition (NewYork Frank Cass 2004) Ramesh Thakur and Peter Macontent eds From Sovereign Impunity toInternational Accountability The Search for Justice in a World of States (Tokyo UN UniversityPress 2004) Tricia D Olsen Leigh A Payne and Andrew G Reiter Transitional Justice in BalanceComparing Processes Weighing Efficacy (Washington DC US Institute of Peace Press 2010)

19 Leebaw supra n 1620 Muvingi supra n 13 Miller supra n 13

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Rethinking Transitional Justice Redressing Indigenous Harm 5

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particularly those that lie outside the conventional transitional justice model of

transition from an authoritarian to a democratic regime Based on a liberal in-

dividualistic model of accountability traditionally pursued through criminal

prosecutions transitional justice theories and initiatives have not foregrounded

ndash or often addressed ndash the structural and societal arrangements that enable or

facilitate human rights violations and other harms ndash what Ratna Kapur refers to as

lsquothe institutional arrangements and structures [that] may be deeply implicated in

the production of the violation or the harm in the first placersquo21 Transitional

justice has emphasized seemingly lsquoexceptionalrsquo violations rather than the more

routine and hence lsquoinvisiblersquo damage stemming from unjust societal arrange-

ments (that do exist in liberal democratic collectivities)22 While there have

been some transitional justice models that seek to address the broader systemic

causes of injustice such as the Truth and Reconciliation Commission of South

Africa the Truth and Reconciliation Commission of Peru and the Commission

for Historical Clarification of Guatemala these have been isolated examples that

have functioned more to recognize the structural bases of contemporary injustice

than to provide the necessary means to effectively confront and redress them23

While structural injustice may originally be caused by a specific enterprise or

experience (such as colonialism) it endures beyond the moment of violation

shaping and constraining the conditions of life experienced by both the dominant

population and particular groups Lia Kent has considered this in light of the

transitional justice mechanisms implemented by the UN in East Timor illustrat-

ing the way in which they were inherently ill-equipped to address the legacies of

structural violence in that country including for example poverty poor health

limited education and lack of economic opportunities for survivors24 In

Australia too structural injustice is most clearly evident in the socioeconomic

gulf between indigenous and non-indigenous communities and in particular in

the disproportionately high incarceration rate of indigenous men women and

young people25 As Rama Mani explicates such broader social and structural

lsquoinequalities are not easily reduced to questions of individual responsibility and

accountability and hence are not adequately addressed through existing transi-

21 Ratna Kapur lsquoNormalizing Violence Transitional Justice and the Gujarat Riotsrsquo ColumbiaJournal of Gender and Law 15(3) (2006) 889 See also Nagy supra n 15 Paige ArthurlsquoIntroduction Identities in Transitionrsquo in Identities in Transition Challenges for TransitionalJustice in Divided Societies ed Paige Arthur (Cambridge Cambridge University Press 2011)

22 Orford supra n 3 Joanna R Quinn lsquoIntroductory Essay Canadarsquos Own Brand of Truth andReconciliationrsquo International Indigenous Policy Journal 2(3) (2011) 1ndash3 Kapur supra n 21 Nagysupra n 15

23 Jennifer Balint and Julie Evans lsquoTransitional Justice and Settler Statesrsquo (paper presented at theAustralian and New Zealand Critical Criminology Conference Sydney Australia 1ndash2 July 2010)

24 Lia Kent The Dynamics of Transitional Justice International Models and Local Realities in EastTimor (London Routledge 2012)

25 Chris Cunneen Conflict Politics and Crime Aboriginal Communities and the Police (Sydney Allenand Unwin 2001)

International Journal of Transitional Justice 2014 1ndash23

6 J Balint J Evans and N McMillan

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tional justice approachesrsquo26 Lisa Laplante arguing that truth commissions should

be more focused on pursuing social justice through an emphasis on economic

social and cultural rights highlights the current preferencing of individualistic

civil and political rights27 Indeed Robert Meister regards this downplaying of

distributive justice questions as constitutive of the mode of justice offered

through transitional justice frameworks Premised on a demarcation of individual

perpetrators (who are responsible for the wrongs of the past) and the broader

population of beneficiaries (who were not directly involved in any atrocities but

benefitted and can continue to benefit from the unjust societal arrangements

that enabled them) transitional justice functions to place issues of social and

distributive justice outside its scope28

To some extent this relative marginalization of structural issues can be ex-

plained with reference to various conceptual constraints that inform conventional

transitional justice paradigms Paige Arthur demonstrates how some of assump-

tions that characterize transitional justice can be traced to the fact that the field

was developed in relation to a distinct set of historical circumstances29

Empirically grounded in the social political and historical conditions that

shaped the Latin American and Eastern European transitions to democracy and

the prevailing academic and practitioner approaches to conceptualizing them

transitional justice is based on certain experiences of social and political reform

and certain understandings of what might constitute justice This helps to explain

for example why transitional justice is structured around the pursuit of legal

accountability and institutional reform designed to establish the foundations for a

new legitimate liberal democratic form of governance30 Moreover it explicates

why transitional justice is concerned with guaranteeing the broad enjoyment of

civil and political rights as the basis of such a democratic society31 which in turn

leads to its comparative inattention to economic and social justice reforms32

The ability of transitional justice successfully to account for structural injustice

and result in structural change is also arguably stymied by its reliance on a certain

temporal framework Transitional justice is premised on the idea of a lsquopoint of

rupturersquo a specific point of change from violence and oppression to a lsquonew

dawnrsquo33 The model assumes a moment of political change and upheaval an

overt change of regime to democracy34 This in turn leads to a certain under-

standing of the past the present and the future as discrete and sequential As such

26 Mani supra n 1327 Laplante supra n 1328 Robert Meister After Evil A Politics of Human Rights (New York Columbia University Press

2011)29 Arthur supra n 1630 Ibid31 Arthur supra n 2132 Arthur supra n 1633 Nagy supra n 15 Miller supra n 1334 The key theorist is Teitel supra n 11 who outlined the role of legal processes in political transition

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 7

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transitional justice assumes a linear notion of time as progress35 in which the past

and the future are seen as separable and successive instead of intertwined and

co-implicated This makes it difficult for transitional justice adequately to

acknowledge and hence redress the enduring structural arrangements that

may have resulted in past as well as present injustice and the ongoing effects of

past inequities on present and future generations

Moreover when viewed within the broader context of modern European ex-

pansion which had such dramatic consequences for precolonial societies tran-

sitional justice seems relatively presentist in its concerns With mandates for truth

commissions and trials that cover quite short time frames the complex impacts of

colonial pasts are effectively elided Instead transitional justice predominantly

engages with contemporary episodes of injustice and their recent histories

Accordingly transitional justice processes in East Timor focused on the harms

perpetrated by Indonesians following their invasion in 1975 ndash their mandates did

not stretch to those of the colonial Portuguese period As Kent shows however it

was during the colonial period that land was taken which shaped later structural

injustice36 Similarly the transitional justice process in South Africa focused on

harms perpetrated after the rise to power of the National Party in 1948 yet did not

examine the complex history of Dutch and British colonial exploitation that

established the initial lines of separation Meanwhile in Rwanda despite recog-

nition that a Belgian colonial past contributed to the genocide in 1994 this past

did not feature in legal processes either nationally or internationally The fieldrsquos

failure to appreciate the global and local historical causes of current injustices

constitutes an effective blindness to the role of European colonialism in perpe-

trating facilitating or perpetuating mass harm Such Eurocentrism complicates

the potential of transitional justice to address more comprehensively the kinds of

mass harms suffered by recognized lsquopostconflictrsquo populations as well as by indi-

genous peoples in settler societies

The capacity of transitional justice to address structural injustice is hampered

by a further conceptual constraint namely its focus on strengthening rather than

challenging the state37 Given its historical foundations and its current associ-

ation with broader rule of law reform programmes transitional justice is oriented

towards laying the foundations for a legitimized or relegitimized democratic

nation-state In its positive conceptions this involves using transitional justice

to establish both a reformed government infrastructure (that gains authority from

its willingness to acknowledge the injustice of and depart from previous state

practice) and a reconstituted social body (that is committed to learning from past

35 Claire Moon Narrating Political Reconciliation South Africarsquos Truth and ReconciliationCommission (Lantham Lexington Books 2008)

36 Kent supra n 2437 For the characterization of transitional justice as a state-building enterprise see Christine Bell

lsquoTransitional Justice Interdisciplinarity and the State of the ldquoFieldrdquo or ldquoNon-Fieldrdquorsquo InternationalJournal of Transitional Justice 3(1) (2009) 5ndash27 Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (New York CambridgeUniversity Press 2001)

International Journal of Transitional Justice 2014 1ndash23

8 J Balint J Evans and N McMillan

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Dow

nloaded from

inequities and ensuring they do not happen again) In its negative conceptions

however such state building involves the appropriation of the event and testi-

monies of the suffering of victims as an opportunity to pursue broader govern-

mental and societal goals38 In order to establish a reconstituted national polity

based on the acknowledgement of the past as a basis for lsquomoving forwardrsquo into the

future victims are asked to testify to injustice but also to leave it in the past

relinquishing as Meister suggests any claim to more substantive redress than they

may be provided39 In this way transitional justice processes can be utilized as a

form of governance and nation building rather than of justice for victims

The failure of existing transitional justice approaches to provide substantive

redress for structural injustices coupled with their inattention to the legacies of

past harms and their invocation as a tool of nation building significantly com-

promises their utility as a mode of addressing the harms arising from colonialism

including harms experienced in setter states such as Australia In order to con-

tribute to building a more robust transitional justice framework the following

section considers how settler colonial theory and practice can help explicate the

concept of structural justice and thus enable a revision of conventional transi-

tional justice approaches

Recognizing Structural Injustice Settler ColonialTheoryThe enduring effects of global practices of colonialism are now widely acknowl-

edged Disrupting the assumption that colonization ended with the formal ces-

sation of colonial governance postcolonial theorists have highlighted the

resilience of colonial forms of knowledge and structural arrangements which

continue to define global and national relations and shape the life experiences

and aspirations of the groups and individuals they encompass40 The notion of the

present as a postcolonial time has been abandoned in favour of an acknowledge-

ment of the intertwined and contiguous nature of the past present and future in a

postcolonial world

Settler colonial theory both calls upon and revises the generalizations of post-

colonial theory to account for the distinctive nature and ongoing impact of co-

lonialism in settler states where there was never even a formal withdrawal of

colonial administrators Here the continuity between the past and the present

is more literal with a lack of any transition to a decolonized state settler states

38 Orford supra n 339 Meister supra n 2840 From a vast literature see Edward Said Orientalism (New York Pantheon Books 1978) Samir

Amin Eurocentrism (New York Monthly Review Press 1989) Robert Young White MythologiesWriting History and the West (New York Routledge 1990) For critical review and analysis seePatrick Wolfe lsquoHistory and Imperialism A Century of Theory from Marx to Postcolonialismrsquoreview essay American Historical Review 102(2) (1997) 388ndash420 Dane Kennedy lsquoImperialHistory and Post-Colonial Theoryrsquo Journal of Imperial and Commonwealth History 24(3)(1996) 345ndash363 Ella Shohat lsquoNotes on the ldquoPostcolonialrdquorsquo Social Text 3132 (1992) 103ndash106

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 9

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Dow

nloaded from

effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

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10 J Balint J Evans and N McMillan

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discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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nloaded from

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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Page 2: The International Journal of Transitional Justice

that needs to respond to the conflict and abuses occurring in non-western states2

transitional justice has not ndash until recently ndash been used as a framework to consider

the injustices that have occurred in western liberal democratic countries Liberal

democratic societies have been positioned as the desired end points of transitional

justice and transitional justice lsquohas tended to ignore the extent to which liberal

democracies themselves might be considered in need of ldquopostconflictrdquo reconcili-

ation and restorative justicersquo3 Indigenous individuals and collectivities have of

course been active throughout time in drawing attention to the injustices arising

from colonialism4 While their activism has produced groundbreaking commit-

ments in international human rights law through the UN Declaration on the

Rights of Indigenous Peoples and the UN Permanent Forum on Indigenous

Issues the extensive and enduring harms caused by settler colonial practices

and policies in countries such as Australia New Zealand Canada and the US

have not constituted the traditional focus of transitional justice discourse and

practice5 Instead western countries continue to appear as the actors that can best

support transitional justice processes in postconflict countries such as East Timor

Rwanda and Libya rather than the subjects of transitional justice that might need

to reckon with their own problematic pasts

In recent times however a greater interest has emerged in connecting transi-

tional justice and the historical experiences of indigenous peoples in settler co-

lonial states Arguably this is attributable in part to the recent use in such states

of political-legal processes that could be deemed transitional justice mechanisms

including truth commissions reparations apologies and prosecutions6 Centred

around goals such as acknowledgement and reconciliation in the case of the

former and accountability in the case of prosecutions these initiatives have

been positioned by governments ndash implicitly rather than explicitly ndash in line

with transitional justice rhetoric as ways of addressing the injustices of the past

in order to provide the conditions for a more just future They include initiatives

such as the Truth and Reconciliation Commission of Canada (inquiring into the

system of residential schools for Aboriginal people that existed in Canada until

1996) and the Australian National Inquiry into the Separation of Aboriginal and

2 Makau W Mutua lsquoSavages Victims and Saviours The Metaphor of Human Rightsrsquo HarvardInternational Law Journal 42 (2001) 201ndash245 Anne Orford Reading Humanitarian InterventionHuman Rights and the Use of Force in International Law (Cambridge Cambridge University Press2003)

3 Chris Cunneen lsquoState Crime the Colonial Question and Indigenous Peoplesrsquo in SupranationalCriminology Towards a Criminology of International Crimes ed Alette Smeulers and RoelofHaveman (Antwerp Intersentia 2008) 159 See also Anne Orford lsquoCommissioning theTruthrsquo Columbia Journal of Gender and Law 15(3) (2006) 851ndash883

4 In the Australian case see John Maynard Fight for Liberty and Freedom The Origins of AustralianAboriginal Activism (Canberra Aboriginal Studies Press 2007) Saliha Belmessous ed NativeClaims Indigenous Law against Empire 1500ndash1920 (Oxford Oxford University Press 2011)

5 A Dirk Moses lsquoOfficial Apologies Reconciliation and Settler Colonialism Australian IndigenousAlterity and Political Agencyrsquo Citizenship Studies 15(2) (2011) 145ndash159

6 Courtney Jung lsquoCanada and the Legacy of the Indian Residential Schools Transitional Justice forIndigenous Peoples in a Nontransitional Societyrsquo in Identities in Transition Challenges forTransitional Justice ed Paige Arthur (Cambridge Cambridge University Press 2011)

International Journal of Transitional Justice 2014 1ndash23

2 J Balint J Evans and N McMillan

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nloaded from

Torres Strait Islander Children from Their Families the governmental apologies

delivered in Canada and Australia regarding certain policies in these nationsrsquo

colonial histories7 the reparations funds established in select Australian jurisdic-

tions such as Tasmania for distinct colonial injustices8 and broader state recon-

ciliation initiatives such as the Australian Council for Aboriginal Reconciliation

which was a key recommendation of the 1991 Royal Commission into Aboriginal

Deaths in Custody9

These initiatives are mirrored by growing academic and practitioner interest in

the significance of transitional justice for addressing settler colonial harms10 This

article draws and builds upon the resulting scholarship to open out onto a

broader consideration of what insights might stem from bringing the fields of

transitional justice and settler colonial theory into relation and in particular how

this may strengthen transitional justice in addressing structural injustice

As a programme of political-legal initiatives in times of transition from state-

sanctioned harm with the capacity to design institutional reform processes that

hold legitimacy and maintain continuity while initiating change transitional

justice has strengths that can be built upon While it has conventionally been

located in moments of political change to enable and shape political transition

through legal measures11 the flexibility and potentiality of transitional justice as a

broader justice model makes it an attractive approach for addressing the historical

injustices of settler colonialism that to date have not been addressed as harms We

focus here on the structural nature of such harm that transitional justice in its

limited temporal response has not addressed

In this article we seek to revise conventional transitional justice approaches by

considering the injustices experienced by indigenous peoples in the settler colo-

nial state of Australia as a structural harm We hope that this reconceptualization

7 Prime Minister of Canadarsquos Office lsquoPrime Minister Harper Offers Full Apology on Behalf ofCanadians for the Indian Residential Schools Systemrsquo 11 June 2008 httpwwwpmgccaeng-mediaaspcategory=2ampfeatureId=6amppageId=46ampid=2149 (accessed 24 February 2014) HumanRights and Equal Opportunity Commission Bringing Them Home The lsquoStolen Childrenrsquo Report(1997) Australian Government lsquoApology to Australiarsquos Indigenous Peoplesrsquo 13 February 2008httpaustraliagovauabout-australiaour-countryour-peopleapology-to-australias-indigen-ous-peoples (accessed 24 February 2014)

8 Maria Rae lsquoWhy Tasmania Adopted the International Norm of Reparations in Compensating theStolen Generationsrsquo (MA thesis University of Melbourne 2011)

9 Indigenous Law Resources lsquoRoyal Commission into Aboriginal Deaths in Custodyrsquo httpwwwaustliieduauauotherIndigLResrciadic (accessed 24 February 2014)

10 Jung supra n 6 Michelle Bonner and Matt James lsquoThe Three Rrsquos of Seeking Transitional JusticeReparation Responsibility and Reframing in Canada and Argentinarsquo International IndigenousPolicy Journal 2(3) (2011) 1ndash29 Damien Short Reconciliation and Colonial Power IndigenousRights in Australia (Aldershot Ashgate 2008) Orford supra n 3 International Center forTransitional Justice Truth and Memory Strengthening Indigenous Rights through TruthCommissions A Practitionerrsquos Resource (2012) See also the recent conferences and symposialsquoStrengthening Indigenous Rights through Truth Commissionsrsquo (International Center forTransitional Justice New York NY July 2011) lsquoTruth Commissions and Indigenous PeoplesLessons Learned Future Challengesrsquo (UN Permanent Forum on Indigenous Issues New York NY15 May 2011) lsquoIndigenous Rights and Transitional Justicersquo (Australian National UniversityCanberra Australia 2011)

11 See Ruti G Teitel Transitional Justice (Oxford Oxford University Press 2000)

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offers new possibilities for understanding structural injury and responding to the

historical injustices that exist in settler colonial states including through opening

up to indigenous worldviews and jurisprudences rather than simply continuing to

privilege western frameworks (including ameliorative transitional justice

approaches)12 In so doing we build on the work of other scholars who have

sought to extend transitional justice frameworks beyond their originary contexts

of application and to revise the concept of lsquojusticersquo (as transformative and dis-

tributive) in the context of transitional justice13 We consider the strengths and

limitations of the conceptualization of transitional justice as a temporal response

brought about by political transition and the observation of transitional justice as

a use of law in enabling political change14 By elaborating the concept of structural

justice with reference to settler colonial theory this article sets out to support the

development of a more robust theory of transitional justice in relation to post-

conflict and postcolonial contexts more generally

The article begins with a consideration of conceptual constraints within the

transitional justice framework that affect its ability to address structural injustices

particularly those resulting from colonialism We then discuss how settler colo-

nial theory may address some of these limitations We consider the empirical

situation in Australia in order to explicate the complexity of structural injustice

and draw on historical and theoretical analysis to identify the nature scope and

purpose of the injustices visited upon indigenous peoples whose initial dispos-

session and continuing marginalization have helped constitute and maintain the

Australian state We ultimately trace the conceptual contours of a revised tran-

sitional justice model that raises new possibilities for thinking about what a com-

mitment to justice a new structural justice may require

12 On the importance of establishing lawful relations in settler societies see Christine Black ShaunMcVeigh and Richard Johnstone lsquoOf the Southrsquo Griffith Law Review 16(2) (2007) 299ndash309 andpassim Nin Tomas lsquoMaori Concepts and Practices of Rangatiratanga ldquoSovereigntyrdquorsquo inSovereignty Frontiers of Possibility ed Julie Evans Ann Genovese Alexander Reilly and PatrickWolfe (Honolulu HI University of Hawaii Press 2013) Taiaiake Alfred Wasase IndigenousPathways of Action and Freedom (Peterborough Broadview 2005)

13 Rama Mani lsquoDilemmas of Expanding Transitional Justice or Forging the Nexus betweenTransitional Justice and Developmentrsquo International Journal of Transitional Justice 2(3) (2008)253ndash265 Lisa J Laplante lsquoTransitional Justice and Peace Building Diagnosing and Addressing theSocioeconomic Roots of Violence through a Human Rights Frameworkrsquo International Journal ofTransitional Justice 2(3) (2008) 331ndash355 Wendy Lambourne lsquoTransitional Justice andPeacebuilding after Mass Violencersquo International Journal of Transitional Justice 3(1) (2009)28ndash48 Ismael Muvingi lsquoSitting on Powder Kegs Socioeconomic Rights in TransitionalSocietiesrsquo International Journal of Transitional Justice 3(2) (2009) 163ndash182 Zinaida MillerlsquoEffects of Invisibility In Search of the ldquoEconomicrdquo in Transitional Justicersquo InternationalJournal of Transitional Justice 2(3) (2008) 266ndash291

14 See in particular Teitel supra n 11 Luc Huyse lsquoJustice after Transition On the Choices SuccessorElites Make in Dealing with the Pastrsquo Law and Social Inquiry 20(1) (1995) 51ndash78 Martha MinowBetween Vengeance and Forgiveness Facing History after Genocide and Mass Violence (Boston MABeacon 1998) Neil J Kritz ed Transitional Justice How Emerging Democracies Reckon withFormer Regimes Country Studies 3 vols (Washington DC US Institute of Peace Press 1995)Priscilla B Hayner Unspeakable Truths Facing the Challenge of Truth Commissions (New YorkRoutledge 2002)

International Journal of Transitional Justice 2014 1ndash23

4 J Balint J Evans and N McMillan

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Transitional Justice and Structural HarmDescribed by Rosemary Nagy as a lsquoglobal projectrsquo15 transitional justice now con-

stitutes a dominant international framework for conceptualizing and pursuing

redress for systematic violations of human rights including military rule and civil

war genocide and widespread oppression It emerged as a discrete field in the late

1980s through the study of the role of law in times of political transition

prompted by the use of legal and quasijudicial responses to the end of military

rule in societies in South and Central America and the collapse of Communism in

Eastern and Central Europe16 Ruti Teitel argues that law functions differently in

times of political upheaval lsquoIn its ordinary social function law provides order and

stability but in extraordinary periods of political upheaval law maintains order

even as it enables transformationrsquo17 This function of law in enabling transform-

ation has become the cornerstone of studies of transitional justice18 and the

framework is now widely employed as an approach to the use of law and justice

in the immediate aftermath of mass harm

As transitional justice has consolidated into an academic field and mode of

practical intervention it has increasingly been subject to critical attention

Commentators have illustrated the contradictory imperatives that characterize

transitional justice approaches19 and sought to broaden the fieldrsquos mandate and

scope beyond the provision of once-off justice measures focused largely on indi-

vidual accountability and the protection of civil and political rights A prominent

critique which is of particular significance to our consideration of the potential

relevance of transitional justice to settler colonial injustices has focused on the

fieldrsquos inadequate attention to the deeper socioeconomic and structural causes

and consequences of conflict20 Transitional justice has continued mostly to

operate in accordance with an individualistic legal framework without facilitating

a deep engagement with structural injustices and the types of interventions

needed to address them As a temporal response to political transition the field

has engaged little with broader long-term structural inequities and harms

15 Rosemary Nagy lsquoTransitional Justice as Global Project Critical Reflectionsrsquo Third WorldQuarterly 29(2) (2008) 275ndash289

16 For a detailed account of the fieldrsquos emergence see Paige Arthur lsquoHow ldquoTransitionsrdquo ReshapedHuman Rights A Conceptual History of Transitional Justicersquo Human Rights Quarterly 31(2)(2009) 321ndash367 Bronwyn Leebaw lsquoThe Irreconcilable Goals of Transitional Justicersquo HumanRights Quarterly 30(1) (2008) 95ndash118

17 Teitel supra n 11 at 618 See ibid Kritz supra n 14 Hayner supra n 14 Huyse supra n 14 Minow supra n 14 Naomi

Roht-Arriaza and Javier Mariezcurrena eds Transitional Justice in the Twenty-First CenturyBeyond Truth versus Justice (Cambridge Cambridge University Press 2006) Chandra LekhaSriram Confronting Past Human Rights Violations Justice vs Peace in Times of Transition (NewYork Frank Cass 2004) Ramesh Thakur and Peter Macontent eds From Sovereign Impunity toInternational Accountability The Search for Justice in a World of States (Tokyo UN UniversityPress 2004) Tricia D Olsen Leigh A Payne and Andrew G Reiter Transitional Justice in BalanceComparing Processes Weighing Efficacy (Washington DC US Institute of Peace Press 2010)

19 Leebaw supra n 1620 Muvingi supra n 13 Miller supra n 13

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nloaded from

particularly those that lie outside the conventional transitional justice model of

transition from an authoritarian to a democratic regime Based on a liberal in-

dividualistic model of accountability traditionally pursued through criminal

prosecutions transitional justice theories and initiatives have not foregrounded

ndash or often addressed ndash the structural and societal arrangements that enable or

facilitate human rights violations and other harms ndash what Ratna Kapur refers to as

lsquothe institutional arrangements and structures [that] may be deeply implicated in

the production of the violation or the harm in the first placersquo21 Transitional

justice has emphasized seemingly lsquoexceptionalrsquo violations rather than the more

routine and hence lsquoinvisiblersquo damage stemming from unjust societal arrange-

ments (that do exist in liberal democratic collectivities)22 While there have

been some transitional justice models that seek to address the broader systemic

causes of injustice such as the Truth and Reconciliation Commission of South

Africa the Truth and Reconciliation Commission of Peru and the Commission

for Historical Clarification of Guatemala these have been isolated examples that

have functioned more to recognize the structural bases of contemporary injustice

than to provide the necessary means to effectively confront and redress them23

While structural injustice may originally be caused by a specific enterprise or

experience (such as colonialism) it endures beyond the moment of violation

shaping and constraining the conditions of life experienced by both the dominant

population and particular groups Lia Kent has considered this in light of the

transitional justice mechanisms implemented by the UN in East Timor illustrat-

ing the way in which they were inherently ill-equipped to address the legacies of

structural violence in that country including for example poverty poor health

limited education and lack of economic opportunities for survivors24 In

Australia too structural injustice is most clearly evident in the socioeconomic

gulf between indigenous and non-indigenous communities and in particular in

the disproportionately high incarceration rate of indigenous men women and

young people25 As Rama Mani explicates such broader social and structural

lsquoinequalities are not easily reduced to questions of individual responsibility and

accountability and hence are not adequately addressed through existing transi-

21 Ratna Kapur lsquoNormalizing Violence Transitional Justice and the Gujarat Riotsrsquo ColumbiaJournal of Gender and Law 15(3) (2006) 889 See also Nagy supra n 15 Paige ArthurlsquoIntroduction Identities in Transitionrsquo in Identities in Transition Challenges for TransitionalJustice in Divided Societies ed Paige Arthur (Cambridge Cambridge University Press 2011)

22 Orford supra n 3 Joanna R Quinn lsquoIntroductory Essay Canadarsquos Own Brand of Truth andReconciliationrsquo International Indigenous Policy Journal 2(3) (2011) 1ndash3 Kapur supra n 21 Nagysupra n 15

23 Jennifer Balint and Julie Evans lsquoTransitional Justice and Settler Statesrsquo (paper presented at theAustralian and New Zealand Critical Criminology Conference Sydney Australia 1ndash2 July 2010)

24 Lia Kent The Dynamics of Transitional Justice International Models and Local Realities in EastTimor (London Routledge 2012)

25 Chris Cunneen Conflict Politics and Crime Aboriginal Communities and the Police (Sydney Allenand Unwin 2001)

International Journal of Transitional Justice 2014 1ndash23

6 J Balint J Evans and N McMillan

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nloaded from

tional justice approachesrsquo26 Lisa Laplante arguing that truth commissions should

be more focused on pursuing social justice through an emphasis on economic

social and cultural rights highlights the current preferencing of individualistic

civil and political rights27 Indeed Robert Meister regards this downplaying of

distributive justice questions as constitutive of the mode of justice offered

through transitional justice frameworks Premised on a demarcation of individual

perpetrators (who are responsible for the wrongs of the past) and the broader

population of beneficiaries (who were not directly involved in any atrocities but

benefitted and can continue to benefit from the unjust societal arrangements

that enabled them) transitional justice functions to place issues of social and

distributive justice outside its scope28

To some extent this relative marginalization of structural issues can be ex-

plained with reference to various conceptual constraints that inform conventional

transitional justice paradigms Paige Arthur demonstrates how some of assump-

tions that characterize transitional justice can be traced to the fact that the field

was developed in relation to a distinct set of historical circumstances29

Empirically grounded in the social political and historical conditions that

shaped the Latin American and Eastern European transitions to democracy and

the prevailing academic and practitioner approaches to conceptualizing them

transitional justice is based on certain experiences of social and political reform

and certain understandings of what might constitute justice This helps to explain

for example why transitional justice is structured around the pursuit of legal

accountability and institutional reform designed to establish the foundations for a

new legitimate liberal democratic form of governance30 Moreover it explicates

why transitional justice is concerned with guaranteeing the broad enjoyment of

civil and political rights as the basis of such a democratic society31 which in turn

leads to its comparative inattention to economic and social justice reforms32

The ability of transitional justice successfully to account for structural injustice

and result in structural change is also arguably stymied by its reliance on a certain

temporal framework Transitional justice is premised on the idea of a lsquopoint of

rupturersquo a specific point of change from violence and oppression to a lsquonew

dawnrsquo33 The model assumes a moment of political change and upheaval an

overt change of regime to democracy34 This in turn leads to a certain under-

standing of the past the present and the future as discrete and sequential As such

26 Mani supra n 1327 Laplante supra n 1328 Robert Meister After Evil A Politics of Human Rights (New York Columbia University Press

2011)29 Arthur supra n 1630 Ibid31 Arthur supra n 2132 Arthur supra n 1633 Nagy supra n 15 Miller supra n 1334 The key theorist is Teitel supra n 11 who outlined the role of legal processes in political transition

International Journal of Transitional Justice 2014 1ndash23

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Dow

nloaded from

transitional justice assumes a linear notion of time as progress35 in which the past

and the future are seen as separable and successive instead of intertwined and

co-implicated This makes it difficult for transitional justice adequately to

acknowledge and hence redress the enduring structural arrangements that

may have resulted in past as well as present injustice and the ongoing effects of

past inequities on present and future generations

Moreover when viewed within the broader context of modern European ex-

pansion which had such dramatic consequences for precolonial societies tran-

sitional justice seems relatively presentist in its concerns With mandates for truth

commissions and trials that cover quite short time frames the complex impacts of

colonial pasts are effectively elided Instead transitional justice predominantly

engages with contemporary episodes of injustice and their recent histories

Accordingly transitional justice processes in East Timor focused on the harms

perpetrated by Indonesians following their invasion in 1975 ndash their mandates did

not stretch to those of the colonial Portuguese period As Kent shows however it

was during the colonial period that land was taken which shaped later structural

injustice36 Similarly the transitional justice process in South Africa focused on

harms perpetrated after the rise to power of the National Party in 1948 yet did not

examine the complex history of Dutch and British colonial exploitation that

established the initial lines of separation Meanwhile in Rwanda despite recog-

nition that a Belgian colonial past contributed to the genocide in 1994 this past

did not feature in legal processes either nationally or internationally The fieldrsquos

failure to appreciate the global and local historical causes of current injustices

constitutes an effective blindness to the role of European colonialism in perpe-

trating facilitating or perpetuating mass harm Such Eurocentrism complicates

the potential of transitional justice to address more comprehensively the kinds of

mass harms suffered by recognized lsquopostconflictrsquo populations as well as by indi-

genous peoples in settler societies

The capacity of transitional justice to address structural injustice is hampered

by a further conceptual constraint namely its focus on strengthening rather than

challenging the state37 Given its historical foundations and its current associ-

ation with broader rule of law reform programmes transitional justice is oriented

towards laying the foundations for a legitimized or relegitimized democratic

nation-state In its positive conceptions this involves using transitional justice

to establish both a reformed government infrastructure (that gains authority from

its willingness to acknowledge the injustice of and depart from previous state

practice) and a reconstituted social body (that is committed to learning from past

35 Claire Moon Narrating Political Reconciliation South Africarsquos Truth and ReconciliationCommission (Lantham Lexington Books 2008)

36 Kent supra n 2437 For the characterization of transitional justice as a state-building enterprise see Christine Bell

lsquoTransitional Justice Interdisciplinarity and the State of the ldquoFieldrdquo or ldquoNon-Fieldrdquorsquo InternationalJournal of Transitional Justice 3(1) (2009) 5ndash27 Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (New York CambridgeUniversity Press 2001)

International Journal of Transitional Justice 2014 1ndash23

8 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

inequities and ensuring they do not happen again) In its negative conceptions

however such state building involves the appropriation of the event and testi-

monies of the suffering of victims as an opportunity to pursue broader govern-

mental and societal goals38 In order to establish a reconstituted national polity

based on the acknowledgement of the past as a basis for lsquomoving forwardrsquo into the

future victims are asked to testify to injustice but also to leave it in the past

relinquishing as Meister suggests any claim to more substantive redress than they

may be provided39 In this way transitional justice processes can be utilized as a

form of governance and nation building rather than of justice for victims

The failure of existing transitional justice approaches to provide substantive

redress for structural injustices coupled with their inattention to the legacies of

past harms and their invocation as a tool of nation building significantly com-

promises their utility as a mode of addressing the harms arising from colonialism

including harms experienced in setter states such as Australia In order to con-

tribute to building a more robust transitional justice framework the following

section considers how settler colonial theory and practice can help explicate the

concept of structural justice and thus enable a revision of conventional transi-

tional justice approaches

Recognizing Structural Injustice Settler ColonialTheoryThe enduring effects of global practices of colonialism are now widely acknowl-

edged Disrupting the assumption that colonization ended with the formal ces-

sation of colonial governance postcolonial theorists have highlighted the

resilience of colonial forms of knowledge and structural arrangements which

continue to define global and national relations and shape the life experiences

and aspirations of the groups and individuals they encompass40 The notion of the

present as a postcolonial time has been abandoned in favour of an acknowledge-

ment of the intertwined and contiguous nature of the past present and future in a

postcolonial world

Settler colonial theory both calls upon and revises the generalizations of post-

colonial theory to account for the distinctive nature and ongoing impact of co-

lonialism in settler states where there was never even a formal withdrawal of

colonial administrators Here the continuity between the past and the present

is more literal with a lack of any transition to a decolonized state settler states

38 Orford supra n 339 Meister supra n 2840 From a vast literature see Edward Said Orientalism (New York Pantheon Books 1978) Samir

Amin Eurocentrism (New York Monthly Review Press 1989) Robert Young White MythologiesWriting History and the West (New York Routledge 1990) For critical review and analysis seePatrick Wolfe lsquoHistory and Imperialism A Century of Theory from Marx to Postcolonialismrsquoreview essay American Historical Review 102(2) (1997) 388ndash420 Dane Kennedy lsquoImperialHistory and Post-Colonial Theoryrsquo Journal of Imperial and Commonwealth History 24(3)(1996) 345ndash363 Ella Shohat lsquoNotes on the ldquoPostcolonialrdquorsquo Social Text 3132 (1992) 103ndash106

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effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

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10 J Balint J Evans and N McMillan

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nloaded from

discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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12 J Balint J Evans and N McMillan

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lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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Dow

nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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Page 3: The International Journal of Transitional Justice

Torres Strait Islander Children from Their Families the governmental apologies

delivered in Canada and Australia regarding certain policies in these nationsrsquo

colonial histories7 the reparations funds established in select Australian jurisdic-

tions such as Tasmania for distinct colonial injustices8 and broader state recon-

ciliation initiatives such as the Australian Council for Aboriginal Reconciliation

which was a key recommendation of the 1991 Royal Commission into Aboriginal

Deaths in Custody9

These initiatives are mirrored by growing academic and practitioner interest in

the significance of transitional justice for addressing settler colonial harms10 This

article draws and builds upon the resulting scholarship to open out onto a

broader consideration of what insights might stem from bringing the fields of

transitional justice and settler colonial theory into relation and in particular how

this may strengthen transitional justice in addressing structural injustice

As a programme of political-legal initiatives in times of transition from state-

sanctioned harm with the capacity to design institutional reform processes that

hold legitimacy and maintain continuity while initiating change transitional

justice has strengths that can be built upon While it has conventionally been

located in moments of political change to enable and shape political transition

through legal measures11 the flexibility and potentiality of transitional justice as a

broader justice model makes it an attractive approach for addressing the historical

injustices of settler colonialism that to date have not been addressed as harms We

focus here on the structural nature of such harm that transitional justice in its

limited temporal response has not addressed

In this article we seek to revise conventional transitional justice approaches by

considering the injustices experienced by indigenous peoples in the settler colo-

nial state of Australia as a structural harm We hope that this reconceptualization

7 Prime Minister of Canadarsquos Office lsquoPrime Minister Harper Offers Full Apology on Behalf ofCanadians for the Indian Residential Schools Systemrsquo 11 June 2008 httpwwwpmgccaeng-mediaaspcategory=2ampfeatureId=6amppageId=46ampid=2149 (accessed 24 February 2014) HumanRights and Equal Opportunity Commission Bringing Them Home The lsquoStolen Childrenrsquo Report(1997) Australian Government lsquoApology to Australiarsquos Indigenous Peoplesrsquo 13 February 2008httpaustraliagovauabout-australiaour-countryour-peopleapology-to-australias-indigen-ous-peoples (accessed 24 February 2014)

8 Maria Rae lsquoWhy Tasmania Adopted the International Norm of Reparations in Compensating theStolen Generationsrsquo (MA thesis University of Melbourne 2011)

9 Indigenous Law Resources lsquoRoyal Commission into Aboriginal Deaths in Custodyrsquo httpwwwaustliieduauauotherIndigLResrciadic (accessed 24 February 2014)

10 Jung supra n 6 Michelle Bonner and Matt James lsquoThe Three Rrsquos of Seeking Transitional JusticeReparation Responsibility and Reframing in Canada and Argentinarsquo International IndigenousPolicy Journal 2(3) (2011) 1ndash29 Damien Short Reconciliation and Colonial Power IndigenousRights in Australia (Aldershot Ashgate 2008) Orford supra n 3 International Center forTransitional Justice Truth and Memory Strengthening Indigenous Rights through TruthCommissions A Practitionerrsquos Resource (2012) See also the recent conferences and symposialsquoStrengthening Indigenous Rights through Truth Commissionsrsquo (International Center forTransitional Justice New York NY July 2011) lsquoTruth Commissions and Indigenous PeoplesLessons Learned Future Challengesrsquo (UN Permanent Forum on Indigenous Issues New York NY15 May 2011) lsquoIndigenous Rights and Transitional Justicersquo (Australian National UniversityCanberra Australia 2011)

11 See Ruti G Teitel Transitional Justice (Oxford Oxford University Press 2000)

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nloaded from

offers new possibilities for understanding structural injury and responding to the

historical injustices that exist in settler colonial states including through opening

up to indigenous worldviews and jurisprudences rather than simply continuing to

privilege western frameworks (including ameliorative transitional justice

approaches)12 In so doing we build on the work of other scholars who have

sought to extend transitional justice frameworks beyond their originary contexts

of application and to revise the concept of lsquojusticersquo (as transformative and dis-

tributive) in the context of transitional justice13 We consider the strengths and

limitations of the conceptualization of transitional justice as a temporal response

brought about by political transition and the observation of transitional justice as

a use of law in enabling political change14 By elaborating the concept of structural

justice with reference to settler colonial theory this article sets out to support the

development of a more robust theory of transitional justice in relation to post-

conflict and postcolonial contexts more generally

The article begins with a consideration of conceptual constraints within the

transitional justice framework that affect its ability to address structural injustices

particularly those resulting from colonialism We then discuss how settler colo-

nial theory may address some of these limitations We consider the empirical

situation in Australia in order to explicate the complexity of structural injustice

and draw on historical and theoretical analysis to identify the nature scope and

purpose of the injustices visited upon indigenous peoples whose initial dispos-

session and continuing marginalization have helped constitute and maintain the

Australian state We ultimately trace the conceptual contours of a revised tran-

sitional justice model that raises new possibilities for thinking about what a com-

mitment to justice a new structural justice may require

12 On the importance of establishing lawful relations in settler societies see Christine Black ShaunMcVeigh and Richard Johnstone lsquoOf the Southrsquo Griffith Law Review 16(2) (2007) 299ndash309 andpassim Nin Tomas lsquoMaori Concepts and Practices of Rangatiratanga ldquoSovereigntyrdquorsquo inSovereignty Frontiers of Possibility ed Julie Evans Ann Genovese Alexander Reilly and PatrickWolfe (Honolulu HI University of Hawaii Press 2013) Taiaiake Alfred Wasase IndigenousPathways of Action and Freedom (Peterborough Broadview 2005)

13 Rama Mani lsquoDilemmas of Expanding Transitional Justice or Forging the Nexus betweenTransitional Justice and Developmentrsquo International Journal of Transitional Justice 2(3) (2008)253ndash265 Lisa J Laplante lsquoTransitional Justice and Peace Building Diagnosing and Addressing theSocioeconomic Roots of Violence through a Human Rights Frameworkrsquo International Journal ofTransitional Justice 2(3) (2008) 331ndash355 Wendy Lambourne lsquoTransitional Justice andPeacebuilding after Mass Violencersquo International Journal of Transitional Justice 3(1) (2009)28ndash48 Ismael Muvingi lsquoSitting on Powder Kegs Socioeconomic Rights in TransitionalSocietiesrsquo International Journal of Transitional Justice 3(2) (2009) 163ndash182 Zinaida MillerlsquoEffects of Invisibility In Search of the ldquoEconomicrdquo in Transitional Justicersquo InternationalJournal of Transitional Justice 2(3) (2008) 266ndash291

14 See in particular Teitel supra n 11 Luc Huyse lsquoJustice after Transition On the Choices SuccessorElites Make in Dealing with the Pastrsquo Law and Social Inquiry 20(1) (1995) 51ndash78 Martha MinowBetween Vengeance and Forgiveness Facing History after Genocide and Mass Violence (Boston MABeacon 1998) Neil J Kritz ed Transitional Justice How Emerging Democracies Reckon withFormer Regimes Country Studies 3 vols (Washington DC US Institute of Peace Press 1995)Priscilla B Hayner Unspeakable Truths Facing the Challenge of Truth Commissions (New YorkRoutledge 2002)

International Journal of Transitional Justice 2014 1ndash23

4 J Balint J Evans and N McMillan

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nloaded from

Transitional Justice and Structural HarmDescribed by Rosemary Nagy as a lsquoglobal projectrsquo15 transitional justice now con-

stitutes a dominant international framework for conceptualizing and pursuing

redress for systematic violations of human rights including military rule and civil

war genocide and widespread oppression It emerged as a discrete field in the late

1980s through the study of the role of law in times of political transition

prompted by the use of legal and quasijudicial responses to the end of military

rule in societies in South and Central America and the collapse of Communism in

Eastern and Central Europe16 Ruti Teitel argues that law functions differently in

times of political upheaval lsquoIn its ordinary social function law provides order and

stability but in extraordinary periods of political upheaval law maintains order

even as it enables transformationrsquo17 This function of law in enabling transform-

ation has become the cornerstone of studies of transitional justice18 and the

framework is now widely employed as an approach to the use of law and justice

in the immediate aftermath of mass harm

As transitional justice has consolidated into an academic field and mode of

practical intervention it has increasingly been subject to critical attention

Commentators have illustrated the contradictory imperatives that characterize

transitional justice approaches19 and sought to broaden the fieldrsquos mandate and

scope beyond the provision of once-off justice measures focused largely on indi-

vidual accountability and the protection of civil and political rights A prominent

critique which is of particular significance to our consideration of the potential

relevance of transitional justice to settler colonial injustices has focused on the

fieldrsquos inadequate attention to the deeper socioeconomic and structural causes

and consequences of conflict20 Transitional justice has continued mostly to

operate in accordance with an individualistic legal framework without facilitating

a deep engagement with structural injustices and the types of interventions

needed to address them As a temporal response to political transition the field

has engaged little with broader long-term structural inequities and harms

15 Rosemary Nagy lsquoTransitional Justice as Global Project Critical Reflectionsrsquo Third WorldQuarterly 29(2) (2008) 275ndash289

16 For a detailed account of the fieldrsquos emergence see Paige Arthur lsquoHow ldquoTransitionsrdquo ReshapedHuman Rights A Conceptual History of Transitional Justicersquo Human Rights Quarterly 31(2)(2009) 321ndash367 Bronwyn Leebaw lsquoThe Irreconcilable Goals of Transitional Justicersquo HumanRights Quarterly 30(1) (2008) 95ndash118

17 Teitel supra n 11 at 618 See ibid Kritz supra n 14 Hayner supra n 14 Huyse supra n 14 Minow supra n 14 Naomi

Roht-Arriaza and Javier Mariezcurrena eds Transitional Justice in the Twenty-First CenturyBeyond Truth versus Justice (Cambridge Cambridge University Press 2006) Chandra LekhaSriram Confronting Past Human Rights Violations Justice vs Peace in Times of Transition (NewYork Frank Cass 2004) Ramesh Thakur and Peter Macontent eds From Sovereign Impunity toInternational Accountability The Search for Justice in a World of States (Tokyo UN UniversityPress 2004) Tricia D Olsen Leigh A Payne and Andrew G Reiter Transitional Justice in BalanceComparing Processes Weighing Efficacy (Washington DC US Institute of Peace Press 2010)

19 Leebaw supra n 1620 Muvingi supra n 13 Miller supra n 13

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particularly those that lie outside the conventional transitional justice model of

transition from an authoritarian to a democratic regime Based on a liberal in-

dividualistic model of accountability traditionally pursued through criminal

prosecutions transitional justice theories and initiatives have not foregrounded

ndash or often addressed ndash the structural and societal arrangements that enable or

facilitate human rights violations and other harms ndash what Ratna Kapur refers to as

lsquothe institutional arrangements and structures [that] may be deeply implicated in

the production of the violation or the harm in the first placersquo21 Transitional

justice has emphasized seemingly lsquoexceptionalrsquo violations rather than the more

routine and hence lsquoinvisiblersquo damage stemming from unjust societal arrange-

ments (that do exist in liberal democratic collectivities)22 While there have

been some transitional justice models that seek to address the broader systemic

causes of injustice such as the Truth and Reconciliation Commission of South

Africa the Truth and Reconciliation Commission of Peru and the Commission

for Historical Clarification of Guatemala these have been isolated examples that

have functioned more to recognize the structural bases of contemporary injustice

than to provide the necessary means to effectively confront and redress them23

While structural injustice may originally be caused by a specific enterprise or

experience (such as colonialism) it endures beyond the moment of violation

shaping and constraining the conditions of life experienced by both the dominant

population and particular groups Lia Kent has considered this in light of the

transitional justice mechanisms implemented by the UN in East Timor illustrat-

ing the way in which they were inherently ill-equipped to address the legacies of

structural violence in that country including for example poverty poor health

limited education and lack of economic opportunities for survivors24 In

Australia too structural injustice is most clearly evident in the socioeconomic

gulf between indigenous and non-indigenous communities and in particular in

the disproportionately high incarceration rate of indigenous men women and

young people25 As Rama Mani explicates such broader social and structural

lsquoinequalities are not easily reduced to questions of individual responsibility and

accountability and hence are not adequately addressed through existing transi-

21 Ratna Kapur lsquoNormalizing Violence Transitional Justice and the Gujarat Riotsrsquo ColumbiaJournal of Gender and Law 15(3) (2006) 889 See also Nagy supra n 15 Paige ArthurlsquoIntroduction Identities in Transitionrsquo in Identities in Transition Challenges for TransitionalJustice in Divided Societies ed Paige Arthur (Cambridge Cambridge University Press 2011)

22 Orford supra n 3 Joanna R Quinn lsquoIntroductory Essay Canadarsquos Own Brand of Truth andReconciliationrsquo International Indigenous Policy Journal 2(3) (2011) 1ndash3 Kapur supra n 21 Nagysupra n 15

23 Jennifer Balint and Julie Evans lsquoTransitional Justice and Settler Statesrsquo (paper presented at theAustralian and New Zealand Critical Criminology Conference Sydney Australia 1ndash2 July 2010)

24 Lia Kent The Dynamics of Transitional Justice International Models and Local Realities in EastTimor (London Routledge 2012)

25 Chris Cunneen Conflict Politics and Crime Aboriginal Communities and the Police (Sydney Allenand Unwin 2001)

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

tional justice approachesrsquo26 Lisa Laplante arguing that truth commissions should

be more focused on pursuing social justice through an emphasis on economic

social and cultural rights highlights the current preferencing of individualistic

civil and political rights27 Indeed Robert Meister regards this downplaying of

distributive justice questions as constitutive of the mode of justice offered

through transitional justice frameworks Premised on a demarcation of individual

perpetrators (who are responsible for the wrongs of the past) and the broader

population of beneficiaries (who were not directly involved in any atrocities but

benefitted and can continue to benefit from the unjust societal arrangements

that enabled them) transitional justice functions to place issues of social and

distributive justice outside its scope28

To some extent this relative marginalization of structural issues can be ex-

plained with reference to various conceptual constraints that inform conventional

transitional justice paradigms Paige Arthur demonstrates how some of assump-

tions that characterize transitional justice can be traced to the fact that the field

was developed in relation to a distinct set of historical circumstances29

Empirically grounded in the social political and historical conditions that

shaped the Latin American and Eastern European transitions to democracy and

the prevailing academic and practitioner approaches to conceptualizing them

transitional justice is based on certain experiences of social and political reform

and certain understandings of what might constitute justice This helps to explain

for example why transitional justice is structured around the pursuit of legal

accountability and institutional reform designed to establish the foundations for a

new legitimate liberal democratic form of governance30 Moreover it explicates

why transitional justice is concerned with guaranteeing the broad enjoyment of

civil and political rights as the basis of such a democratic society31 which in turn

leads to its comparative inattention to economic and social justice reforms32

The ability of transitional justice successfully to account for structural injustice

and result in structural change is also arguably stymied by its reliance on a certain

temporal framework Transitional justice is premised on the idea of a lsquopoint of

rupturersquo a specific point of change from violence and oppression to a lsquonew

dawnrsquo33 The model assumes a moment of political change and upheaval an

overt change of regime to democracy34 This in turn leads to a certain under-

standing of the past the present and the future as discrete and sequential As such

26 Mani supra n 1327 Laplante supra n 1328 Robert Meister After Evil A Politics of Human Rights (New York Columbia University Press

2011)29 Arthur supra n 1630 Ibid31 Arthur supra n 2132 Arthur supra n 1633 Nagy supra n 15 Miller supra n 1334 The key theorist is Teitel supra n 11 who outlined the role of legal processes in political transition

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

transitional justice assumes a linear notion of time as progress35 in which the past

and the future are seen as separable and successive instead of intertwined and

co-implicated This makes it difficult for transitional justice adequately to

acknowledge and hence redress the enduring structural arrangements that

may have resulted in past as well as present injustice and the ongoing effects of

past inequities on present and future generations

Moreover when viewed within the broader context of modern European ex-

pansion which had such dramatic consequences for precolonial societies tran-

sitional justice seems relatively presentist in its concerns With mandates for truth

commissions and trials that cover quite short time frames the complex impacts of

colonial pasts are effectively elided Instead transitional justice predominantly

engages with contemporary episodes of injustice and their recent histories

Accordingly transitional justice processes in East Timor focused on the harms

perpetrated by Indonesians following their invasion in 1975 ndash their mandates did

not stretch to those of the colonial Portuguese period As Kent shows however it

was during the colonial period that land was taken which shaped later structural

injustice36 Similarly the transitional justice process in South Africa focused on

harms perpetrated after the rise to power of the National Party in 1948 yet did not

examine the complex history of Dutch and British colonial exploitation that

established the initial lines of separation Meanwhile in Rwanda despite recog-

nition that a Belgian colonial past contributed to the genocide in 1994 this past

did not feature in legal processes either nationally or internationally The fieldrsquos

failure to appreciate the global and local historical causes of current injustices

constitutes an effective blindness to the role of European colonialism in perpe-

trating facilitating or perpetuating mass harm Such Eurocentrism complicates

the potential of transitional justice to address more comprehensively the kinds of

mass harms suffered by recognized lsquopostconflictrsquo populations as well as by indi-

genous peoples in settler societies

The capacity of transitional justice to address structural injustice is hampered

by a further conceptual constraint namely its focus on strengthening rather than

challenging the state37 Given its historical foundations and its current associ-

ation with broader rule of law reform programmes transitional justice is oriented

towards laying the foundations for a legitimized or relegitimized democratic

nation-state In its positive conceptions this involves using transitional justice

to establish both a reformed government infrastructure (that gains authority from

its willingness to acknowledge the injustice of and depart from previous state

practice) and a reconstituted social body (that is committed to learning from past

35 Claire Moon Narrating Political Reconciliation South Africarsquos Truth and ReconciliationCommission (Lantham Lexington Books 2008)

36 Kent supra n 2437 For the characterization of transitional justice as a state-building enterprise see Christine Bell

lsquoTransitional Justice Interdisciplinarity and the State of the ldquoFieldrdquo or ldquoNon-Fieldrdquorsquo InternationalJournal of Transitional Justice 3(1) (2009) 5ndash27 Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (New York CambridgeUniversity Press 2001)

International Journal of Transitional Justice 2014 1ndash23

8 J Balint J Evans and N McMillan

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

inequities and ensuring they do not happen again) In its negative conceptions

however such state building involves the appropriation of the event and testi-

monies of the suffering of victims as an opportunity to pursue broader govern-

mental and societal goals38 In order to establish a reconstituted national polity

based on the acknowledgement of the past as a basis for lsquomoving forwardrsquo into the

future victims are asked to testify to injustice but also to leave it in the past

relinquishing as Meister suggests any claim to more substantive redress than they

may be provided39 In this way transitional justice processes can be utilized as a

form of governance and nation building rather than of justice for victims

The failure of existing transitional justice approaches to provide substantive

redress for structural injustices coupled with their inattention to the legacies of

past harms and their invocation as a tool of nation building significantly com-

promises their utility as a mode of addressing the harms arising from colonialism

including harms experienced in setter states such as Australia In order to con-

tribute to building a more robust transitional justice framework the following

section considers how settler colonial theory and practice can help explicate the

concept of structural justice and thus enable a revision of conventional transi-

tional justice approaches

Recognizing Structural Injustice Settler ColonialTheoryThe enduring effects of global practices of colonialism are now widely acknowl-

edged Disrupting the assumption that colonization ended with the formal ces-

sation of colonial governance postcolonial theorists have highlighted the

resilience of colonial forms of knowledge and structural arrangements which

continue to define global and national relations and shape the life experiences

and aspirations of the groups and individuals they encompass40 The notion of the

present as a postcolonial time has been abandoned in favour of an acknowledge-

ment of the intertwined and contiguous nature of the past present and future in a

postcolonial world

Settler colonial theory both calls upon and revises the generalizations of post-

colonial theory to account for the distinctive nature and ongoing impact of co-

lonialism in settler states where there was never even a formal withdrawal of

colonial administrators Here the continuity between the past and the present

is more literal with a lack of any transition to a decolonized state settler states

38 Orford supra n 339 Meister supra n 2840 From a vast literature see Edward Said Orientalism (New York Pantheon Books 1978) Samir

Amin Eurocentrism (New York Monthly Review Press 1989) Robert Young White MythologiesWriting History and the West (New York Routledge 1990) For critical review and analysis seePatrick Wolfe lsquoHistory and Imperialism A Century of Theory from Marx to Postcolonialismrsquoreview essay American Historical Review 102(2) (1997) 388ndash420 Dane Kennedy lsquoImperialHistory and Post-Colonial Theoryrsquo Journal of Imperial and Commonwealth History 24(3)(1996) 345ndash363 Ella Shohat lsquoNotes on the ldquoPostcolonialrdquorsquo Social Text 3132 (1992) 103ndash106

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 9

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Dow

nloaded from

effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

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10 J Balint J Evans and N McMillan

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nloaded from

discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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nloaded from

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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Dow

nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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Page 4: The International Journal of Transitional Justice

offers new possibilities for understanding structural injury and responding to the

historical injustices that exist in settler colonial states including through opening

up to indigenous worldviews and jurisprudences rather than simply continuing to

privilege western frameworks (including ameliorative transitional justice

approaches)12 In so doing we build on the work of other scholars who have

sought to extend transitional justice frameworks beyond their originary contexts

of application and to revise the concept of lsquojusticersquo (as transformative and dis-

tributive) in the context of transitional justice13 We consider the strengths and

limitations of the conceptualization of transitional justice as a temporal response

brought about by political transition and the observation of transitional justice as

a use of law in enabling political change14 By elaborating the concept of structural

justice with reference to settler colonial theory this article sets out to support the

development of a more robust theory of transitional justice in relation to post-

conflict and postcolonial contexts more generally

The article begins with a consideration of conceptual constraints within the

transitional justice framework that affect its ability to address structural injustices

particularly those resulting from colonialism We then discuss how settler colo-

nial theory may address some of these limitations We consider the empirical

situation in Australia in order to explicate the complexity of structural injustice

and draw on historical and theoretical analysis to identify the nature scope and

purpose of the injustices visited upon indigenous peoples whose initial dispos-

session and continuing marginalization have helped constitute and maintain the

Australian state We ultimately trace the conceptual contours of a revised tran-

sitional justice model that raises new possibilities for thinking about what a com-

mitment to justice a new structural justice may require

12 On the importance of establishing lawful relations in settler societies see Christine Black ShaunMcVeigh and Richard Johnstone lsquoOf the Southrsquo Griffith Law Review 16(2) (2007) 299ndash309 andpassim Nin Tomas lsquoMaori Concepts and Practices of Rangatiratanga ldquoSovereigntyrdquorsquo inSovereignty Frontiers of Possibility ed Julie Evans Ann Genovese Alexander Reilly and PatrickWolfe (Honolulu HI University of Hawaii Press 2013) Taiaiake Alfred Wasase IndigenousPathways of Action and Freedom (Peterborough Broadview 2005)

13 Rama Mani lsquoDilemmas of Expanding Transitional Justice or Forging the Nexus betweenTransitional Justice and Developmentrsquo International Journal of Transitional Justice 2(3) (2008)253ndash265 Lisa J Laplante lsquoTransitional Justice and Peace Building Diagnosing and Addressing theSocioeconomic Roots of Violence through a Human Rights Frameworkrsquo International Journal ofTransitional Justice 2(3) (2008) 331ndash355 Wendy Lambourne lsquoTransitional Justice andPeacebuilding after Mass Violencersquo International Journal of Transitional Justice 3(1) (2009)28ndash48 Ismael Muvingi lsquoSitting on Powder Kegs Socioeconomic Rights in TransitionalSocietiesrsquo International Journal of Transitional Justice 3(2) (2009) 163ndash182 Zinaida MillerlsquoEffects of Invisibility In Search of the ldquoEconomicrdquo in Transitional Justicersquo InternationalJournal of Transitional Justice 2(3) (2008) 266ndash291

14 See in particular Teitel supra n 11 Luc Huyse lsquoJustice after Transition On the Choices SuccessorElites Make in Dealing with the Pastrsquo Law and Social Inquiry 20(1) (1995) 51ndash78 Martha MinowBetween Vengeance and Forgiveness Facing History after Genocide and Mass Violence (Boston MABeacon 1998) Neil J Kritz ed Transitional Justice How Emerging Democracies Reckon withFormer Regimes Country Studies 3 vols (Washington DC US Institute of Peace Press 1995)Priscilla B Hayner Unspeakable Truths Facing the Challenge of Truth Commissions (New YorkRoutledge 2002)

International Journal of Transitional Justice 2014 1ndash23

4 J Balint J Evans and N McMillan

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nloaded from

Transitional Justice and Structural HarmDescribed by Rosemary Nagy as a lsquoglobal projectrsquo15 transitional justice now con-

stitutes a dominant international framework for conceptualizing and pursuing

redress for systematic violations of human rights including military rule and civil

war genocide and widespread oppression It emerged as a discrete field in the late

1980s through the study of the role of law in times of political transition

prompted by the use of legal and quasijudicial responses to the end of military

rule in societies in South and Central America and the collapse of Communism in

Eastern and Central Europe16 Ruti Teitel argues that law functions differently in

times of political upheaval lsquoIn its ordinary social function law provides order and

stability but in extraordinary periods of political upheaval law maintains order

even as it enables transformationrsquo17 This function of law in enabling transform-

ation has become the cornerstone of studies of transitional justice18 and the

framework is now widely employed as an approach to the use of law and justice

in the immediate aftermath of mass harm

As transitional justice has consolidated into an academic field and mode of

practical intervention it has increasingly been subject to critical attention

Commentators have illustrated the contradictory imperatives that characterize

transitional justice approaches19 and sought to broaden the fieldrsquos mandate and

scope beyond the provision of once-off justice measures focused largely on indi-

vidual accountability and the protection of civil and political rights A prominent

critique which is of particular significance to our consideration of the potential

relevance of transitional justice to settler colonial injustices has focused on the

fieldrsquos inadequate attention to the deeper socioeconomic and structural causes

and consequences of conflict20 Transitional justice has continued mostly to

operate in accordance with an individualistic legal framework without facilitating

a deep engagement with structural injustices and the types of interventions

needed to address them As a temporal response to political transition the field

has engaged little with broader long-term structural inequities and harms

15 Rosemary Nagy lsquoTransitional Justice as Global Project Critical Reflectionsrsquo Third WorldQuarterly 29(2) (2008) 275ndash289

16 For a detailed account of the fieldrsquos emergence see Paige Arthur lsquoHow ldquoTransitionsrdquo ReshapedHuman Rights A Conceptual History of Transitional Justicersquo Human Rights Quarterly 31(2)(2009) 321ndash367 Bronwyn Leebaw lsquoThe Irreconcilable Goals of Transitional Justicersquo HumanRights Quarterly 30(1) (2008) 95ndash118

17 Teitel supra n 11 at 618 See ibid Kritz supra n 14 Hayner supra n 14 Huyse supra n 14 Minow supra n 14 Naomi

Roht-Arriaza and Javier Mariezcurrena eds Transitional Justice in the Twenty-First CenturyBeyond Truth versus Justice (Cambridge Cambridge University Press 2006) Chandra LekhaSriram Confronting Past Human Rights Violations Justice vs Peace in Times of Transition (NewYork Frank Cass 2004) Ramesh Thakur and Peter Macontent eds From Sovereign Impunity toInternational Accountability The Search for Justice in a World of States (Tokyo UN UniversityPress 2004) Tricia D Olsen Leigh A Payne and Andrew G Reiter Transitional Justice in BalanceComparing Processes Weighing Efficacy (Washington DC US Institute of Peace Press 2010)

19 Leebaw supra n 1620 Muvingi supra n 13 Miller supra n 13

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nloaded from

particularly those that lie outside the conventional transitional justice model of

transition from an authoritarian to a democratic regime Based on a liberal in-

dividualistic model of accountability traditionally pursued through criminal

prosecutions transitional justice theories and initiatives have not foregrounded

ndash or often addressed ndash the structural and societal arrangements that enable or

facilitate human rights violations and other harms ndash what Ratna Kapur refers to as

lsquothe institutional arrangements and structures [that] may be deeply implicated in

the production of the violation or the harm in the first placersquo21 Transitional

justice has emphasized seemingly lsquoexceptionalrsquo violations rather than the more

routine and hence lsquoinvisiblersquo damage stemming from unjust societal arrange-

ments (that do exist in liberal democratic collectivities)22 While there have

been some transitional justice models that seek to address the broader systemic

causes of injustice such as the Truth and Reconciliation Commission of South

Africa the Truth and Reconciliation Commission of Peru and the Commission

for Historical Clarification of Guatemala these have been isolated examples that

have functioned more to recognize the structural bases of contemporary injustice

than to provide the necessary means to effectively confront and redress them23

While structural injustice may originally be caused by a specific enterprise or

experience (such as colonialism) it endures beyond the moment of violation

shaping and constraining the conditions of life experienced by both the dominant

population and particular groups Lia Kent has considered this in light of the

transitional justice mechanisms implemented by the UN in East Timor illustrat-

ing the way in which they were inherently ill-equipped to address the legacies of

structural violence in that country including for example poverty poor health

limited education and lack of economic opportunities for survivors24 In

Australia too structural injustice is most clearly evident in the socioeconomic

gulf between indigenous and non-indigenous communities and in particular in

the disproportionately high incarceration rate of indigenous men women and

young people25 As Rama Mani explicates such broader social and structural

lsquoinequalities are not easily reduced to questions of individual responsibility and

accountability and hence are not adequately addressed through existing transi-

21 Ratna Kapur lsquoNormalizing Violence Transitional Justice and the Gujarat Riotsrsquo ColumbiaJournal of Gender and Law 15(3) (2006) 889 See also Nagy supra n 15 Paige ArthurlsquoIntroduction Identities in Transitionrsquo in Identities in Transition Challenges for TransitionalJustice in Divided Societies ed Paige Arthur (Cambridge Cambridge University Press 2011)

22 Orford supra n 3 Joanna R Quinn lsquoIntroductory Essay Canadarsquos Own Brand of Truth andReconciliationrsquo International Indigenous Policy Journal 2(3) (2011) 1ndash3 Kapur supra n 21 Nagysupra n 15

23 Jennifer Balint and Julie Evans lsquoTransitional Justice and Settler Statesrsquo (paper presented at theAustralian and New Zealand Critical Criminology Conference Sydney Australia 1ndash2 July 2010)

24 Lia Kent The Dynamics of Transitional Justice International Models and Local Realities in EastTimor (London Routledge 2012)

25 Chris Cunneen Conflict Politics and Crime Aboriginal Communities and the Police (Sydney Allenand Unwin 2001)

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

tional justice approachesrsquo26 Lisa Laplante arguing that truth commissions should

be more focused on pursuing social justice through an emphasis on economic

social and cultural rights highlights the current preferencing of individualistic

civil and political rights27 Indeed Robert Meister regards this downplaying of

distributive justice questions as constitutive of the mode of justice offered

through transitional justice frameworks Premised on a demarcation of individual

perpetrators (who are responsible for the wrongs of the past) and the broader

population of beneficiaries (who were not directly involved in any atrocities but

benefitted and can continue to benefit from the unjust societal arrangements

that enabled them) transitional justice functions to place issues of social and

distributive justice outside its scope28

To some extent this relative marginalization of structural issues can be ex-

plained with reference to various conceptual constraints that inform conventional

transitional justice paradigms Paige Arthur demonstrates how some of assump-

tions that characterize transitional justice can be traced to the fact that the field

was developed in relation to a distinct set of historical circumstances29

Empirically grounded in the social political and historical conditions that

shaped the Latin American and Eastern European transitions to democracy and

the prevailing academic and practitioner approaches to conceptualizing them

transitional justice is based on certain experiences of social and political reform

and certain understandings of what might constitute justice This helps to explain

for example why transitional justice is structured around the pursuit of legal

accountability and institutional reform designed to establish the foundations for a

new legitimate liberal democratic form of governance30 Moreover it explicates

why transitional justice is concerned with guaranteeing the broad enjoyment of

civil and political rights as the basis of such a democratic society31 which in turn

leads to its comparative inattention to economic and social justice reforms32

The ability of transitional justice successfully to account for structural injustice

and result in structural change is also arguably stymied by its reliance on a certain

temporal framework Transitional justice is premised on the idea of a lsquopoint of

rupturersquo a specific point of change from violence and oppression to a lsquonew

dawnrsquo33 The model assumes a moment of political change and upheaval an

overt change of regime to democracy34 This in turn leads to a certain under-

standing of the past the present and the future as discrete and sequential As such

26 Mani supra n 1327 Laplante supra n 1328 Robert Meister After Evil A Politics of Human Rights (New York Columbia University Press

2011)29 Arthur supra n 1630 Ibid31 Arthur supra n 2132 Arthur supra n 1633 Nagy supra n 15 Miller supra n 1334 The key theorist is Teitel supra n 11 who outlined the role of legal processes in political transition

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transitional justice assumes a linear notion of time as progress35 in which the past

and the future are seen as separable and successive instead of intertwined and

co-implicated This makes it difficult for transitional justice adequately to

acknowledge and hence redress the enduring structural arrangements that

may have resulted in past as well as present injustice and the ongoing effects of

past inequities on present and future generations

Moreover when viewed within the broader context of modern European ex-

pansion which had such dramatic consequences for precolonial societies tran-

sitional justice seems relatively presentist in its concerns With mandates for truth

commissions and trials that cover quite short time frames the complex impacts of

colonial pasts are effectively elided Instead transitional justice predominantly

engages with contemporary episodes of injustice and their recent histories

Accordingly transitional justice processes in East Timor focused on the harms

perpetrated by Indonesians following their invasion in 1975 ndash their mandates did

not stretch to those of the colonial Portuguese period As Kent shows however it

was during the colonial period that land was taken which shaped later structural

injustice36 Similarly the transitional justice process in South Africa focused on

harms perpetrated after the rise to power of the National Party in 1948 yet did not

examine the complex history of Dutch and British colonial exploitation that

established the initial lines of separation Meanwhile in Rwanda despite recog-

nition that a Belgian colonial past contributed to the genocide in 1994 this past

did not feature in legal processes either nationally or internationally The fieldrsquos

failure to appreciate the global and local historical causes of current injustices

constitutes an effective blindness to the role of European colonialism in perpe-

trating facilitating or perpetuating mass harm Such Eurocentrism complicates

the potential of transitional justice to address more comprehensively the kinds of

mass harms suffered by recognized lsquopostconflictrsquo populations as well as by indi-

genous peoples in settler societies

The capacity of transitional justice to address structural injustice is hampered

by a further conceptual constraint namely its focus on strengthening rather than

challenging the state37 Given its historical foundations and its current associ-

ation with broader rule of law reform programmes transitional justice is oriented

towards laying the foundations for a legitimized or relegitimized democratic

nation-state In its positive conceptions this involves using transitional justice

to establish both a reformed government infrastructure (that gains authority from

its willingness to acknowledge the injustice of and depart from previous state

practice) and a reconstituted social body (that is committed to learning from past

35 Claire Moon Narrating Political Reconciliation South Africarsquos Truth and ReconciliationCommission (Lantham Lexington Books 2008)

36 Kent supra n 2437 For the characterization of transitional justice as a state-building enterprise see Christine Bell

lsquoTransitional Justice Interdisciplinarity and the State of the ldquoFieldrdquo or ldquoNon-Fieldrdquorsquo InternationalJournal of Transitional Justice 3(1) (2009) 5ndash27 Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (New York CambridgeUniversity Press 2001)

International Journal of Transitional Justice 2014 1ndash23

8 J Balint J Evans and N McMillan

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

inequities and ensuring they do not happen again) In its negative conceptions

however such state building involves the appropriation of the event and testi-

monies of the suffering of victims as an opportunity to pursue broader govern-

mental and societal goals38 In order to establish a reconstituted national polity

based on the acknowledgement of the past as a basis for lsquomoving forwardrsquo into the

future victims are asked to testify to injustice but also to leave it in the past

relinquishing as Meister suggests any claim to more substantive redress than they

may be provided39 In this way transitional justice processes can be utilized as a

form of governance and nation building rather than of justice for victims

The failure of existing transitional justice approaches to provide substantive

redress for structural injustices coupled with their inattention to the legacies of

past harms and their invocation as a tool of nation building significantly com-

promises their utility as a mode of addressing the harms arising from colonialism

including harms experienced in setter states such as Australia In order to con-

tribute to building a more robust transitional justice framework the following

section considers how settler colonial theory and practice can help explicate the

concept of structural justice and thus enable a revision of conventional transi-

tional justice approaches

Recognizing Structural Injustice Settler ColonialTheoryThe enduring effects of global practices of colonialism are now widely acknowl-

edged Disrupting the assumption that colonization ended with the formal ces-

sation of colonial governance postcolonial theorists have highlighted the

resilience of colonial forms of knowledge and structural arrangements which

continue to define global and national relations and shape the life experiences

and aspirations of the groups and individuals they encompass40 The notion of the

present as a postcolonial time has been abandoned in favour of an acknowledge-

ment of the intertwined and contiguous nature of the past present and future in a

postcolonial world

Settler colonial theory both calls upon and revises the generalizations of post-

colonial theory to account for the distinctive nature and ongoing impact of co-

lonialism in settler states where there was never even a formal withdrawal of

colonial administrators Here the continuity between the past and the present

is more literal with a lack of any transition to a decolonized state settler states

38 Orford supra n 339 Meister supra n 2840 From a vast literature see Edward Said Orientalism (New York Pantheon Books 1978) Samir

Amin Eurocentrism (New York Monthly Review Press 1989) Robert Young White MythologiesWriting History and the West (New York Routledge 1990) For critical review and analysis seePatrick Wolfe lsquoHistory and Imperialism A Century of Theory from Marx to Postcolonialismrsquoreview essay American Historical Review 102(2) (1997) 388ndash420 Dane Kennedy lsquoImperialHistory and Post-Colonial Theoryrsquo Journal of Imperial and Commonwealth History 24(3)(1996) 345ndash363 Ella Shohat lsquoNotes on the ldquoPostcolonialrdquorsquo Social Text 3132 (1992) 103ndash106

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 9

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Dow

nloaded from

effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

International Journal of Transitional Justice 2014 1ndash23

10 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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12 J Balint J Evans and N McMillan

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nloaded from

lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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Page 5: The International Journal of Transitional Justice

Transitional Justice and Structural HarmDescribed by Rosemary Nagy as a lsquoglobal projectrsquo15 transitional justice now con-

stitutes a dominant international framework for conceptualizing and pursuing

redress for systematic violations of human rights including military rule and civil

war genocide and widespread oppression It emerged as a discrete field in the late

1980s through the study of the role of law in times of political transition

prompted by the use of legal and quasijudicial responses to the end of military

rule in societies in South and Central America and the collapse of Communism in

Eastern and Central Europe16 Ruti Teitel argues that law functions differently in

times of political upheaval lsquoIn its ordinary social function law provides order and

stability but in extraordinary periods of political upheaval law maintains order

even as it enables transformationrsquo17 This function of law in enabling transform-

ation has become the cornerstone of studies of transitional justice18 and the

framework is now widely employed as an approach to the use of law and justice

in the immediate aftermath of mass harm

As transitional justice has consolidated into an academic field and mode of

practical intervention it has increasingly been subject to critical attention

Commentators have illustrated the contradictory imperatives that characterize

transitional justice approaches19 and sought to broaden the fieldrsquos mandate and

scope beyond the provision of once-off justice measures focused largely on indi-

vidual accountability and the protection of civil and political rights A prominent

critique which is of particular significance to our consideration of the potential

relevance of transitional justice to settler colonial injustices has focused on the

fieldrsquos inadequate attention to the deeper socioeconomic and structural causes

and consequences of conflict20 Transitional justice has continued mostly to

operate in accordance with an individualistic legal framework without facilitating

a deep engagement with structural injustices and the types of interventions

needed to address them As a temporal response to political transition the field

has engaged little with broader long-term structural inequities and harms

15 Rosemary Nagy lsquoTransitional Justice as Global Project Critical Reflectionsrsquo Third WorldQuarterly 29(2) (2008) 275ndash289

16 For a detailed account of the fieldrsquos emergence see Paige Arthur lsquoHow ldquoTransitionsrdquo ReshapedHuman Rights A Conceptual History of Transitional Justicersquo Human Rights Quarterly 31(2)(2009) 321ndash367 Bronwyn Leebaw lsquoThe Irreconcilable Goals of Transitional Justicersquo HumanRights Quarterly 30(1) (2008) 95ndash118

17 Teitel supra n 11 at 618 See ibid Kritz supra n 14 Hayner supra n 14 Huyse supra n 14 Minow supra n 14 Naomi

Roht-Arriaza and Javier Mariezcurrena eds Transitional Justice in the Twenty-First CenturyBeyond Truth versus Justice (Cambridge Cambridge University Press 2006) Chandra LekhaSriram Confronting Past Human Rights Violations Justice vs Peace in Times of Transition (NewYork Frank Cass 2004) Ramesh Thakur and Peter Macontent eds From Sovereign Impunity toInternational Accountability The Search for Justice in a World of States (Tokyo UN UniversityPress 2004) Tricia D Olsen Leigh A Payne and Andrew G Reiter Transitional Justice in BalanceComparing Processes Weighing Efficacy (Washington DC US Institute of Peace Press 2010)

19 Leebaw supra n 1620 Muvingi supra n 13 Miller supra n 13

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particularly those that lie outside the conventional transitional justice model of

transition from an authoritarian to a democratic regime Based on a liberal in-

dividualistic model of accountability traditionally pursued through criminal

prosecutions transitional justice theories and initiatives have not foregrounded

ndash or often addressed ndash the structural and societal arrangements that enable or

facilitate human rights violations and other harms ndash what Ratna Kapur refers to as

lsquothe institutional arrangements and structures [that] may be deeply implicated in

the production of the violation or the harm in the first placersquo21 Transitional

justice has emphasized seemingly lsquoexceptionalrsquo violations rather than the more

routine and hence lsquoinvisiblersquo damage stemming from unjust societal arrange-

ments (that do exist in liberal democratic collectivities)22 While there have

been some transitional justice models that seek to address the broader systemic

causes of injustice such as the Truth and Reconciliation Commission of South

Africa the Truth and Reconciliation Commission of Peru and the Commission

for Historical Clarification of Guatemala these have been isolated examples that

have functioned more to recognize the structural bases of contemporary injustice

than to provide the necessary means to effectively confront and redress them23

While structural injustice may originally be caused by a specific enterprise or

experience (such as colonialism) it endures beyond the moment of violation

shaping and constraining the conditions of life experienced by both the dominant

population and particular groups Lia Kent has considered this in light of the

transitional justice mechanisms implemented by the UN in East Timor illustrat-

ing the way in which they were inherently ill-equipped to address the legacies of

structural violence in that country including for example poverty poor health

limited education and lack of economic opportunities for survivors24 In

Australia too structural injustice is most clearly evident in the socioeconomic

gulf between indigenous and non-indigenous communities and in particular in

the disproportionately high incarceration rate of indigenous men women and

young people25 As Rama Mani explicates such broader social and structural

lsquoinequalities are not easily reduced to questions of individual responsibility and

accountability and hence are not adequately addressed through existing transi-

21 Ratna Kapur lsquoNormalizing Violence Transitional Justice and the Gujarat Riotsrsquo ColumbiaJournal of Gender and Law 15(3) (2006) 889 See also Nagy supra n 15 Paige ArthurlsquoIntroduction Identities in Transitionrsquo in Identities in Transition Challenges for TransitionalJustice in Divided Societies ed Paige Arthur (Cambridge Cambridge University Press 2011)

22 Orford supra n 3 Joanna R Quinn lsquoIntroductory Essay Canadarsquos Own Brand of Truth andReconciliationrsquo International Indigenous Policy Journal 2(3) (2011) 1ndash3 Kapur supra n 21 Nagysupra n 15

23 Jennifer Balint and Julie Evans lsquoTransitional Justice and Settler Statesrsquo (paper presented at theAustralian and New Zealand Critical Criminology Conference Sydney Australia 1ndash2 July 2010)

24 Lia Kent The Dynamics of Transitional Justice International Models and Local Realities in EastTimor (London Routledge 2012)

25 Chris Cunneen Conflict Politics and Crime Aboriginal Communities and the Police (Sydney Allenand Unwin 2001)

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nloaded from

tional justice approachesrsquo26 Lisa Laplante arguing that truth commissions should

be more focused on pursuing social justice through an emphasis on economic

social and cultural rights highlights the current preferencing of individualistic

civil and political rights27 Indeed Robert Meister regards this downplaying of

distributive justice questions as constitutive of the mode of justice offered

through transitional justice frameworks Premised on a demarcation of individual

perpetrators (who are responsible for the wrongs of the past) and the broader

population of beneficiaries (who were not directly involved in any atrocities but

benefitted and can continue to benefit from the unjust societal arrangements

that enabled them) transitional justice functions to place issues of social and

distributive justice outside its scope28

To some extent this relative marginalization of structural issues can be ex-

plained with reference to various conceptual constraints that inform conventional

transitional justice paradigms Paige Arthur demonstrates how some of assump-

tions that characterize transitional justice can be traced to the fact that the field

was developed in relation to a distinct set of historical circumstances29

Empirically grounded in the social political and historical conditions that

shaped the Latin American and Eastern European transitions to democracy and

the prevailing academic and practitioner approaches to conceptualizing them

transitional justice is based on certain experiences of social and political reform

and certain understandings of what might constitute justice This helps to explain

for example why transitional justice is structured around the pursuit of legal

accountability and institutional reform designed to establish the foundations for a

new legitimate liberal democratic form of governance30 Moreover it explicates

why transitional justice is concerned with guaranteeing the broad enjoyment of

civil and political rights as the basis of such a democratic society31 which in turn

leads to its comparative inattention to economic and social justice reforms32

The ability of transitional justice successfully to account for structural injustice

and result in structural change is also arguably stymied by its reliance on a certain

temporal framework Transitional justice is premised on the idea of a lsquopoint of

rupturersquo a specific point of change from violence and oppression to a lsquonew

dawnrsquo33 The model assumes a moment of political change and upheaval an

overt change of regime to democracy34 This in turn leads to a certain under-

standing of the past the present and the future as discrete and sequential As such

26 Mani supra n 1327 Laplante supra n 1328 Robert Meister After Evil A Politics of Human Rights (New York Columbia University Press

2011)29 Arthur supra n 1630 Ibid31 Arthur supra n 2132 Arthur supra n 1633 Nagy supra n 15 Miller supra n 1334 The key theorist is Teitel supra n 11 who outlined the role of legal processes in political transition

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transitional justice assumes a linear notion of time as progress35 in which the past

and the future are seen as separable and successive instead of intertwined and

co-implicated This makes it difficult for transitional justice adequately to

acknowledge and hence redress the enduring structural arrangements that

may have resulted in past as well as present injustice and the ongoing effects of

past inequities on present and future generations

Moreover when viewed within the broader context of modern European ex-

pansion which had such dramatic consequences for precolonial societies tran-

sitional justice seems relatively presentist in its concerns With mandates for truth

commissions and trials that cover quite short time frames the complex impacts of

colonial pasts are effectively elided Instead transitional justice predominantly

engages with contemporary episodes of injustice and their recent histories

Accordingly transitional justice processes in East Timor focused on the harms

perpetrated by Indonesians following their invasion in 1975 ndash their mandates did

not stretch to those of the colonial Portuguese period As Kent shows however it

was during the colonial period that land was taken which shaped later structural

injustice36 Similarly the transitional justice process in South Africa focused on

harms perpetrated after the rise to power of the National Party in 1948 yet did not

examine the complex history of Dutch and British colonial exploitation that

established the initial lines of separation Meanwhile in Rwanda despite recog-

nition that a Belgian colonial past contributed to the genocide in 1994 this past

did not feature in legal processes either nationally or internationally The fieldrsquos

failure to appreciate the global and local historical causes of current injustices

constitutes an effective blindness to the role of European colonialism in perpe-

trating facilitating or perpetuating mass harm Such Eurocentrism complicates

the potential of transitional justice to address more comprehensively the kinds of

mass harms suffered by recognized lsquopostconflictrsquo populations as well as by indi-

genous peoples in settler societies

The capacity of transitional justice to address structural injustice is hampered

by a further conceptual constraint namely its focus on strengthening rather than

challenging the state37 Given its historical foundations and its current associ-

ation with broader rule of law reform programmes transitional justice is oriented

towards laying the foundations for a legitimized or relegitimized democratic

nation-state In its positive conceptions this involves using transitional justice

to establish both a reformed government infrastructure (that gains authority from

its willingness to acknowledge the injustice of and depart from previous state

practice) and a reconstituted social body (that is committed to learning from past

35 Claire Moon Narrating Political Reconciliation South Africarsquos Truth and ReconciliationCommission (Lantham Lexington Books 2008)

36 Kent supra n 2437 For the characterization of transitional justice as a state-building enterprise see Christine Bell

lsquoTransitional Justice Interdisciplinarity and the State of the ldquoFieldrdquo or ldquoNon-Fieldrdquorsquo InternationalJournal of Transitional Justice 3(1) (2009) 5ndash27 Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (New York CambridgeUniversity Press 2001)

International Journal of Transitional Justice 2014 1ndash23

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Dow

nloaded from

inequities and ensuring they do not happen again) In its negative conceptions

however such state building involves the appropriation of the event and testi-

monies of the suffering of victims as an opportunity to pursue broader govern-

mental and societal goals38 In order to establish a reconstituted national polity

based on the acknowledgement of the past as a basis for lsquomoving forwardrsquo into the

future victims are asked to testify to injustice but also to leave it in the past

relinquishing as Meister suggests any claim to more substantive redress than they

may be provided39 In this way transitional justice processes can be utilized as a

form of governance and nation building rather than of justice for victims

The failure of existing transitional justice approaches to provide substantive

redress for structural injustices coupled with their inattention to the legacies of

past harms and their invocation as a tool of nation building significantly com-

promises their utility as a mode of addressing the harms arising from colonialism

including harms experienced in setter states such as Australia In order to con-

tribute to building a more robust transitional justice framework the following

section considers how settler colonial theory and practice can help explicate the

concept of structural justice and thus enable a revision of conventional transi-

tional justice approaches

Recognizing Structural Injustice Settler ColonialTheoryThe enduring effects of global practices of colonialism are now widely acknowl-

edged Disrupting the assumption that colonization ended with the formal ces-

sation of colonial governance postcolonial theorists have highlighted the

resilience of colonial forms of knowledge and structural arrangements which

continue to define global and national relations and shape the life experiences

and aspirations of the groups and individuals they encompass40 The notion of the

present as a postcolonial time has been abandoned in favour of an acknowledge-

ment of the intertwined and contiguous nature of the past present and future in a

postcolonial world

Settler colonial theory both calls upon and revises the generalizations of post-

colonial theory to account for the distinctive nature and ongoing impact of co-

lonialism in settler states where there was never even a formal withdrawal of

colonial administrators Here the continuity between the past and the present

is more literal with a lack of any transition to a decolonized state settler states

38 Orford supra n 339 Meister supra n 2840 From a vast literature see Edward Said Orientalism (New York Pantheon Books 1978) Samir

Amin Eurocentrism (New York Monthly Review Press 1989) Robert Young White MythologiesWriting History and the West (New York Routledge 1990) For critical review and analysis seePatrick Wolfe lsquoHistory and Imperialism A Century of Theory from Marx to Postcolonialismrsquoreview essay American Historical Review 102(2) (1997) 388ndash420 Dane Kennedy lsquoImperialHistory and Post-Colonial Theoryrsquo Journal of Imperial and Commonwealth History 24(3)(1996) 345ndash363 Ella Shohat lsquoNotes on the ldquoPostcolonialrdquorsquo Social Text 3132 (1992) 103ndash106

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nloaded from

effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

International Journal of Transitional Justice 2014 1ndash23

10 J Balint J Evans and N McMillan

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nloaded from

discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

International Journal of Transitional Justice 2014 1ndash23

12 J Balint J Evans and N McMillan

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nloaded from

lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

International Journal of Transitional Justice 2014 1ndash23

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poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

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18 J Balint J Evans and N McMillan

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nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 6: The International Journal of Transitional Justice

particularly those that lie outside the conventional transitional justice model of

transition from an authoritarian to a democratic regime Based on a liberal in-

dividualistic model of accountability traditionally pursued through criminal

prosecutions transitional justice theories and initiatives have not foregrounded

ndash or often addressed ndash the structural and societal arrangements that enable or

facilitate human rights violations and other harms ndash what Ratna Kapur refers to as

lsquothe institutional arrangements and structures [that] may be deeply implicated in

the production of the violation or the harm in the first placersquo21 Transitional

justice has emphasized seemingly lsquoexceptionalrsquo violations rather than the more

routine and hence lsquoinvisiblersquo damage stemming from unjust societal arrange-

ments (that do exist in liberal democratic collectivities)22 While there have

been some transitional justice models that seek to address the broader systemic

causes of injustice such as the Truth and Reconciliation Commission of South

Africa the Truth and Reconciliation Commission of Peru and the Commission

for Historical Clarification of Guatemala these have been isolated examples that

have functioned more to recognize the structural bases of contemporary injustice

than to provide the necessary means to effectively confront and redress them23

While structural injustice may originally be caused by a specific enterprise or

experience (such as colonialism) it endures beyond the moment of violation

shaping and constraining the conditions of life experienced by both the dominant

population and particular groups Lia Kent has considered this in light of the

transitional justice mechanisms implemented by the UN in East Timor illustrat-

ing the way in which they were inherently ill-equipped to address the legacies of

structural violence in that country including for example poverty poor health

limited education and lack of economic opportunities for survivors24 In

Australia too structural injustice is most clearly evident in the socioeconomic

gulf between indigenous and non-indigenous communities and in particular in

the disproportionately high incarceration rate of indigenous men women and

young people25 As Rama Mani explicates such broader social and structural

lsquoinequalities are not easily reduced to questions of individual responsibility and

accountability and hence are not adequately addressed through existing transi-

21 Ratna Kapur lsquoNormalizing Violence Transitional Justice and the Gujarat Riotsrsquo ColumbiaJournal of Gender and Law 15(3) (2006) 889 See also Nagy supra n 15 Paige ArthurlsquoIntroduction Identities in Transitionrsquo in Identities in Transition Challenges for TransitionalJustice in Divided Societies ed Paige Arthur (Cambridge Cambridge University Press 2011)

22 Orford supra n 3 Joanna R Quinn lsquoIntroductory Essay Canadarsquos Own Brand of Truth andReconciliationrsquo International Indigenous Policy Journal 2(3) (2011) 1ndash3 Kapur supra n 21 Nagysupra n 15

23 Jennifer Balint and Julie Evans lsquoTransitional Justice and Settler Statesrsquo (paper presented at theAustralian and New Zealand Critical Criminology Conference Sydney Australia 1ndash2 July 2010)

24 Lia Kent The Dynamics of Transitional Justice International Models and Local Realities in EastTimor (London Routledge 2012)

25 Chris Cunneen Conflict Politics and Crime Aboriginal Communities and the Police (Sydney Allenand Unwin 2001)

International Journal of Transitional Justice 2014 1ndash23

6 J Balint J Evans and N McMillan

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

tional justice approachesrsquo26 Lisa Laplante arguing that truth commissions should

be more focused on pursuing social justice through an emphasis on economic

social and cultural rights highlights the current preferencing of individualistic

civil and political rights27 Indeed Robert Meister regards this downplaying of

distributive justice questions as constitutive of the mode of justice offered

through transitional justice frameworks Premised on a demarcation of individual

perpetrators (who are responsible for the wrongs of the past) and the broader

population of beneficiaries (who were not directly involved in any atrocities but

benefitted and can continue to benefit from the unjust societal arrangements

that enabled them) transitional justice functions to place issues of social and

distributive justice outside its scope28

To some extent this relative marginalization of structural issues can be ex-

plained with reference to various conceptual constraints that inform conventional

transitional justice paradigms Paige Arthur demonstrates how some of assump-

tions that characterize transitional justice can be traced to the fact that the field

was developed in relation to a distinct set of historical circumstances29

Empirically grounded in the social political and historical conditions that

shaped the Latin American and Eastern European transitions to democracy and

the prevailing academic and practitioner approaches to conceptualizing them

transitional justice is based on certain experiences of social and political reform

and certain understandings of what might constitute justice This helps to explain

for example why transitional justice is structured around the pursuit of legal

accountability and institutional reform designed to establish the foundations for a

new legitimate liberal democratic form of governance30 Moreover it explicates

why transitional justice is concerned with guaranteeing the broad enjoyment of

civil and political rights as the basis of such a democratic society31 which in turn

leads to its comparative inattention to economic and social justice reforms32

The ability of transitional justice successfully to account for structural injustice

and result in structural change is also arguably stymied by its reliance on a certain

temporal framework Transitional justice is premised on the idea of a lsquopoint of

rupturersquo a specific point of change from violence and oppression to a lsquonew

dawnrsquo33 The model assumes a moment of political change and upheaval an

overt change of regime to democracy34 This in turn leads to a certain under-

standing of the past the present and the future as discrete and sequential As such

26 Mani supra n 1327 Laplante supra n 1328 Robert Meister After Evil A Politics of Human Rights (New York Columbia University Press

2011)29 Arthur supra n 1630 Ibid31 Arthur supra n 2132 Arthur supra n 1633 Nagy supra n 15 Miller supra n 1334 The key theorist is Teitel supra n 11 who outlined the role of legal processes in political transition

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transitional justice assumes a linear notion of time as progress35 in which the past

and the future are seen as separable and successive instead of intertwined and

co-implicated This makes it difficult for transitional justice adequately to

acknowledge and hence redress the enduring structural arrangements that

may have resulted in past as well as present injustice and the ongoing effects of

past inequities on present and future generations

Moreover when viewed within the broader context of modern European ex-

pansion which had such dramatic consequences for precolonial societies tran-

sitional justice seems relatively presentist in its concerns With mandates for truth

commissions and trials that cover quite short time frames the complex impacts of

colonial pasts are effectively elided Instead transitional justice predominantly

engages with contemporary episodes of injustice and their recent histories

Accordingly transitional justice processes in East Timor focused on the harms

perpetrated by Indonesians following their invasion in 1975 ndash their mandates did

not stretch to those of the colonial Portuguese period As Kent shows however it

was during the colonial period that land was taken which shaped later structural

injustice36 Similarly the transitional justice process in South Africa focused on

harms perpetrated after the rise to power of the National Party in 1948 yet did not

examine the complex history of Dutch and British colonial exploitation that

established the initial lines of separation Meanwhile in Rwanda despite recog-

nition that a Belgian colonial past contributed to the genocide in 1994 this past

did not feature in legal processes either nationally or internationally The fieldrsquos

failure to appreciate the global and local historical causes of current injustices

constitutes an effective blindness to the role of European colonialism in perpe-

trating facilitating or perpetuating mass harm Such Eurocentrism complicates

the potential of transitional justice to address more comprehensively the kinds of

mass harms suffered by recognized lsquopostconflictrsquo populations as well as by indi-

genous peoples in settler societies

The capacity of transitional justice to address structural injustice is hampered

by a further conceptual constraint namely its focus on strengthening rather than

challenging the state37 Given its historical foundations and its current associ-

ation with broader rule of law reform programmes transitional justice is oriented

towards laying the foundations for a legitimized or relegitimized democratic

nation-state In its positive conceptions this involves using transitional justice

to establish both a reformed government infrastructure (that gains authority from

its willingness to acknowledge the injustice of and depart from previous state

practice) and a reconstituted social body (that is committed to learning from past

35 Claire Moon Narrating Political Reconciliation South Africarsquos Truth and ReconciliationCommission (Lantham Lexington Books 2008)

36 Kent supra n 2437 For the characterization of transitional justice as a state-building enterprise see Christine Bell

lsquoTransitional Justice Interdisciplinarity and the State of the ldquoFieldrdquo or ldquoNon-Fieldrdquorsquo InternationalJournal of Transitional Justice 3(1) (2009) 5ndash27 Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (New York CambridgeUniversity Press 2001)

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

inequities and ensuring they do not happen again) In its negative conceptions

however such state building involves the appropriation of the event and testi-

monies of the suffering of victims as an opportunity to pursue broader govern-

mental and societal goals38 In order to establish a reconstituted national polity

based on the acknowledgement of the past as a basis for lsquomoving forwardrsquo into the

future victims are asked to testify to injustice but also to leave it in the past

relinquishing as Meister suggests any claim to more substantive redress than they

may be provided39 In this way transitional justice processes can be utilized as a

form of governance and nation building rather than of justice for victims

The failure of existing transitional justice approaches to provide substantive

redress for structural injustices coupled with their inattention to the legacies of

past harms and their invocation as a tool of nation building significantly com-

promises their utility as a mode of addressing the harms arising from colonialism

including harms experienced in setter states such as Australia In order to con-

tribute to building a more robust transitional justice framework the following

section considers how settler colonial theory and practice can help explicate the

concept of structural justice and thus enable a revision of conventional transi-

tional justice approaches

Recognizing Structural Injustice Settler ColonialTheoryThe enduring effects of global practices of colonialism are now widely acknowl-

edged Disrupting the assumption that colonization ended with the formal ces-

sation of colonial governance postcolonial theorists have highlighted the

resilience of colonial forms of knowledge and structural arrangements which

continue to define global and national relations and shape the life experiences

and aspirations of the groups and individuals they encompass40 The notion of the

present as a postcolonial time has been abandoned in favour of an acknowledge-

ment of the intertwined and contiguous nature of the past present and future in a

postcolonial world

Settler colonial theory both calls upon and revises the generalizations of post-

colonial theory to account for the distinctive nature and ongoing impact of co-

lonialism in settler states where there was never even a formal withdrawal of

colonial administrators Here the continuity between the past and the present

is more literal with a lack of any transition to a decolonized state settler states

38 Orford supra n 339 Meister supra n 2840 From a vast literature see Edward Said Orientalism (New York Pantheon Books 1978) Samir

Amin Eurocentrism (New York Monthly Review Press 1989) Robert Young White MythologiesWriting History and the West (New York Routledge 1990) For critical review and analysis seePatrick Wolfe lsquoHistory and Imperialism A Century of Theory from Marx to Postcolonialismrsquoreview essay American Historical Review 102(2) (1997) 388ndash420 Dane Kennedy lsquoImperialHistory and Post-Colonial Theoryrsquo Journal of Imperial and Commonwealth History 24(3)(1996) 345ndash363 Ella Shohat lsquoNotes on the ldquoPostcolonialrdquorsquo Social Text 3132 (1992) 103ndash106

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nloaded from

effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

International Journal of Transitional Justice 2014 1ndash23

10 J Balint J Evans and N McMillan

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nloaded from

discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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12 J Balint J Evans and N McMillan

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lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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nloaded from

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

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18 J Balint J Evans and N McMillan

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nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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Page 7: The International Journal of Transitional Justice

tional justice approachesrsquo26 Lisa Laplante arguing that truth commissions should

be more focused on pursuing social justice through an emphasis on economic

social and cultural rights highlights the current preferencing of individualistic

civil and political rights27 Indeed Robert Meister regards this downplaying of

distributive justice questions as constitutive of the mode of justice offered

through transitional justice frameworks Premised on a demarcation of individual

perpetrators (who are responsible for the wrongs of the past) and the broader

population of beneficiaries (who were not directly involved in any atrocities but

benefitted and can continue to benefit from the unjust societal arrangements

that enabled them) transitional justice functions to place issues of social and

distributive justice outside its scope28

To some extent this relative marginalization of structural issues can be ex-

plained with reference to various conceptual constraints that inform conventional

transitional justice paradigms Paige Arthur demonstrates how some of assump-

tions that characterize transitional justice can be traced to the fact that the field

was developed in relation to a distinct set of historical circumstances29

Empirically grounded in the social political and historical conditions that

shaped the Latin American and Eastern European transitions to democracy and

the prevailing academic and practitioner approaches to conceptualizing them

transitional justice is based on certain experiences of social and political reform

and certain understandings of what might constitute justice This helps to explain

for example why transitional justice is structured around the pursuit of legal

accountability and institutional reform designed to establish the foundations for a

new legitimate liberal democratic form of governance30 Moreover it explicates

why transitional justice is concerned with guaranteeing the broad enjoyment of

civil and political rights as the basis of such a democratic society31 which in turn

leads to its comparative inattention to economic and social justice reforms32

The ability of transitional justice successfully to account for structural injustice

and result in structural change is also arguably stymied by its reliance on a certain

temporal framework Transitional justice is premised on the idea of a lsquopoint of

rupturersquo a specific point of change from violence and oppression to a lsquonew

dawnrsquo33 The model assumes a moment of political change and upheaval an

overt change of regime to democracy34 This in turn leads to a certain under-

standing of the past the present and the future as discrete and sequential As such

26 Mani supra n 1327 Laplante supra n 1328 Robert Meister After Evil A Politics of Human Rights (New York Columbia University Press

2011)29 Arthur supra n 1630 Ibid31 Arthur supra n 2132 Arthur supra n 1633 Nagy supra n 15 Miller supra n 1334 The key theorist is Teitel supra n 11 who outlined the role of legal processes in political transition

International Journal of Transitional Justice 2014 1ndash23

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Dow

nloaded from

transitional justice assumes a linear notion of time as progress35 in which the past

and the future are seen as separable and successive instead of intertwined and

co-implicated This makes it difficult for transitional justice adequately to

acknowledge and hence redress the enduring structural arrangements that

may have resulted in past as well as present injustice and the ongoing effects of

past inequities on present and future generations

Moreover when viewed within the broader context of modern European ex-

pansion which had such dramatic consequences for precolonial societies tran-

sitional justice seems relatively presentist in its concerns With mandates for truth

commissions and trials that cover quite short time frames the complex impacts of

colonial pasts are effectively elided Instead transitional justice predominantly

engages with contemporary episodes of injustice and their recent histories

Accordingly transitional justice processes in East Timor focused on the harms

perpetrated by Indonesians following their invasion in 1975 ndash their mandates did

not stretch to those of the colonial Portuguese period As Kent shows however it

was during the colonial period that land was taken which shaped later structural

injustice36 Similarly the transitional justice process in South Africa focused on

harms perpetrated after the rise to power of the National Party in 1948 yet did not

examine the complex history of Dutch and British colonial exploitation that

established the initial lines of separation Meanwhile in Rwanda despite recog-

nition that a Belgian colonial past contributed to the genocide in 1994 this past

did not feature in legal processes either nationally or internationally The fieldrsquos

failure to appreciate the global and local historical causes of current injustices

constitutes an effective blindness to the role of European colonialism in perpe-

trating facilitating or perpetuating mass harm Such Eurocentrism complicates

the potential of transitional justice to address more comprehensively the kinds of

mass harms suffered by recognized lsquopostconflictrsquo populations as well as by indi-

genous peoples in settler societies

The capacity of transitional justice to address structural injustice is hampered

by a further conceptual constraint namely its focus on strengthening rather than

challenging the state37 Given its historical foundations and its current associ-

ation with broader rule of law reform programmes transitional justice is oriented

towards laying the foundations for a legitimized or relegitimized democratic

nation-state In its positive conceptions this involves using transitional justice

to establish both a reformed government infrastructure (that gains authority from

its willingness to acknowledge the injustice of and depart from previous state

practice) and a reconstituted social body (that is committed to learning from past

35 Claire Moon Narrating Political Reconciliation South Africarsquos Truth and ReconciliationCommission (Lantham Lexington Books 2008)

36 Kent supra n 2437 For the characterization of transitional justice as a state-building enterprise see Christine Bell

lsquoTransitional Justice Interdisciplinarity and the State of the ldquoFieldrdquo or ldquoNon-Fieldrdquorsquo InternationalJournal of Transitional Justice 3(1) (2009) 5ndash27 Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (New York CambridgeUniversity Press 2001)

International Journal of Transitional Justice 2014 1ndash23

8 J Balint J Evans and N McMillan

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Dow

nloaded from

inequities and ensuring they do not happen again) In its negative conceptions

however such state building involves the appropriation of the event and testi-

monies of the suffering of victims as an opportunity to pursue broader govern-

mental and societal goals38 In order to establish a reconstituted national polity

based on the acknowledgement of the past as a basis for lsquomoving forwardrsquo into the

future victims are asked to testify to injustice but also to leave it in the past

relinquishing as Meister suggests any claim to more substantive redress than they

may be provided39 In this way transitional justice processes can be utilized as a

form of governance and nation building rather than of justice for victims

The failure of existing transitional justice approaches to provide substantive

redress for structural injustices coupled with their inattention to the legacies of

past harms and their invocation as a tool of nation building significantly com-

promises their utility as a mode of addressing the harms arising from colonialism

including harms experienced in setter states such as Australia In order to con-

tribute to building a more robust transitional justice framework the following

section considers how settler colonial theory and practice can help explicate the

concept of structural justice and thus enable a revision of conventional transi-

tional justice approaches

Recognizing Structural Injustice Settler ColonialTheoryThe enduring effects of global practices of colonialism are now widely acknowl-

edged Disrupting the assumption that colonization ended with the formal ces-

sation of colonial governance postcolonial theorists have highlighted the

resilience of colonial forms of knowledge and structural arrangements which

continue to define global and national relations and shape the life experiences

and aspirations of the groups and individuals they encompass40 The notion of the

present as a postcolonial time has been abandoned in favour of an acknowledge-

ment of the intertwined and contiguous nature of the past present and future in a

postcolonial world

Settler colonial theory both calls upon and revises the generalizations of post-

colonial theory to account for the distinctive nature and ongoing impact of co-

lonialism in settler states where there was never even a formal withdrawal of

colonial administrators Here the continuity between the past and the present

is more literal with a lack of any transition to a decolonized state settler states

38 Orford supra n 339 Meister supra n 2840 From a vast literature see Edward Said Orientalism (New York Pantheon Books 1978) Samir

Amin Eurocentrism (New York Monthly Review Press 1989) Robert Young White MythologiesWriting History and the West (New York Routledge 1990) For critical review and analysis seePatrick Wolfe lsquoHistory and Imperialism A Century of Theory from Marx to Postcolonialismrsquoreview essay American Historical Review 102(2) (1997) 388ndash420 Dane Kennedy lsquoImperialHistory and Post-Colonial Theoryrsquo Journal of Imperial and Commonwealth History 24(3)(1996) 345ndash363 Ella Shohat lsquoNotes on the ldquoPostcolonialrdquorsquo Social Text 3132 (1992) 103ndash106

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 9

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Dow

nloaded from

effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

International Journal of Transitional Justice 2014 1ndash23

10 J Balint J Evans and N McMillan

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Dow

nloaded from

discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 11

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Dow

nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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12 J Balint J Evans and N McMillan

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lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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nloaded from

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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Dow

nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

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Page 8: The International Journal of Transitional Justice

transitional justice assumes a linear notion of time as progress35 in which the past

and the future are seen as separable and successive instead of intertwined and

co-implicated This makes it difficult for transitional justice adequately to

acknowledge and hence redress the enduring structural arrangements that

may have resulted in past as well as present injustice and the ongoing effects of

past inequities on present and future generations

Moreover when viewed within the broader context of modern European ex-

pansion which had such dramatic consequences for precolonial societies tran-

sitional justice seems relatively presentist in its concerns With mandates for truth

commissions and trials that cover quite short time frames the complex impacts of

colonial pasts are effectively elided Instead transitional justice predominantly

engages with contemporary episodes of injustice and their recent histories

Accordingly transitional justice processes in East Timor focused on the harms

perpetrated by Indonesians following their invasion in 1975 ndash their mandates did

not stretch to those of the colonial Portuguese period As Kent shows however it

was during the colonial period that land was taken which shaped later structural

injustice36 Similarly the transitional justice process in South Africa focused on

harms perpetrated after the rise to power of the National Party in 1948 yet did not

examine the complex history of Dutch and British colonial exploitation that

established the initial lines of separation Meanwhile in Rwanda despite recog-

nition that a Belgian colonial past contributed to the genocide in 1994 this past

did not feature in legal processes either nationally or internationally The fieldrsquos

failure to appreciate the global and local historical causes of current injustices

constitutes an effective blindness to the role of European colonialism in perpe-

trating facilitating or perpetuating mass harm Such Eurocentrism complicates

the potential of transitional justice to address more comprehensively the kinds of

mass harms suffered by recognized lsquopostconflictrsquo populations as well as by indi-

genous peoples in settler societies

The capacity of transitional justice to address structural injustice is hampered

by a further conceptual constraint namely its focus on strengthening rather than

challenging the state37 Given its historical foundations and its current associ-

ation with broader rule of law reform programmes transitional justice is oriented

towards laying the foundations for a legitimized or relegitimized democratic

nation-state In its positive conceptions this involves using transitional justice

to establish both a reformed government infrastructure (that gains authority from

its willingness to acknowledge the injustice of and depart from previous state

practice) and a reconstituted social body (that is committed to learning from past

35 Claire Moon Narrating Political Reconciliation South Africarsquos Truth and ReconciliationCommission (Lantham Lexington Books 2008)

36 Kent supra n 2437 For the characterization of transitional justice as a state-building enterprise see Christine Bell

lsquoTransitional Justice Interdisciplinarity and the State of the ldquoFieldrdquo or ldquoNon-Fieldrdquorsquo InternationalJournal of Transitional Justice 3(1) (2009) 5ndash27 Richard A Wilson The Politics of Truth andReconciliation in South Africa Legitimizing the Post-Apartheid State (New York CambridgeUniversity Press 2001)

International Journal of Transitional Justice 2014 1ndash23

8 J Balint J Evans and N McMillan

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nloaded from

inequities and ensuring they do not happen again) In its negative conceptions

however such state building involves the appropriation of the event and testi-

monies of the suffering of victims as an opportunity to pursue broader govern-

mental and societal goals38 In order to establish a reconstituted national polity

based on the acknowledgement of the past as a basis for lsquomoving forwardrsquo into the

future victims are asked to testify to injustice but also to leave it in the past

relinquishing as Meister suggests any claim to more substantive redress than they

may be provided39 In this way transitional justice processes can be utilized as a

form of governance and nation building rather than of justice for victims

The failure of existing transitional justice approaches to provide substantive

redress for structural injustices coupled with their inattention to the legacies of

past harms and their invocation as a tool of nation building significantly com-

promises their utility as a mode of addressing the harms arising from colonialism

including harms experienced in setter states such as Australia In order to con-

tribute to building a more robust transitional justice framework the following

section considers how settler colonial theory and practice can help explicate the

concept of structural justice and thus enable a revision of conventional transi-

tional justice approaches

Recognizing Structural Injustice Settler ColonialTheoryThe enduring effects of global practices of colonialism are now widely acknowl-

edged Disrupting the assumption that colonization ended with the formal ces-

sation of colonial governance postcolonial theorists have highlighted the

resilience of colonial forms of knowledge and structural arrangements which

continue to define global and national relations and shape the life experiences

and aspirations of the groups and individuals they encompass40 The notion of the

present as a postcolonial time has been abandoned in favour of an acknowledge-

ment of the intertwined and contiguous nature of the past present and future in a

postcolonial world

Settler colonial theory both calls upon and revises the generalizations of post-

colonial theory to account for the distinctive nature and ongoing impact of co-

lonialism in settler states where there was never even a formal withdrawal of

colonial administrators Here the continuity between the past and the present

is more literal with a lack of any transition to a decolonized state settler states

38 Orford supra n 339 Meister supra n 2840 From a vast literature see Edward Said Orientalism (New York Pantheon Books 1978) Samir

Amin Eurocentrism (New York Monthly Review Press 1989) Robert Young White MythologiesWriting History and the West (New York Routledge 1990) For critical review and analysis seePatrick Wolfe lsquoHistory and Imperialism A Century of Theory from Marx to Postcolonialismrsquoreview essay American Historical Review 102(2) (1997) 388ndash420 Dane Kennedy lsquoImperialHistory and Post-Colonial Theoryrsquo Journal of Imperial and Commonwealth History 24(3)(1996) 345ndash363 Ella Shohat lsquoNotes on the ldquoPostcolonialrdquorsquo Social Text 3132 (1992) 103ndash106

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nloaded from

effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

International Journal of Transitional Justice 2014 1ndash23

10 J Balint J Evans and N McMillan

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discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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12 J Balint J Evans and N McMillan

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lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

International Journal of Transitional Justice 2014 1ndash23

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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nloaded from

Page 9: The International Journal of Transitional Justice

inequities and ensuring they do not happen again) In its negative conceptions

however such state building involves the appropriation of the event and testi-

monies of the suffering of victims as an opportunity to pursue broader govern-

mental and societal goals38 In order to establish a reconstituted national polity

based on the acknowledgement of the past as a basis for lsquomoving forwardrsquo into the

future victims are asked to testify to injustice but also to leave it in the past

relinquishing as Meister suggests any claim to more substantive redress than they

may be provided39 In this way transitional justice processes can be utilized as a

form of governance and nation building rather than of justice for victims

The failure of existing transitional justice approaches to provide substantive

redress for structural injustices coupled with their inattention to the legacies of

past harms and their invocation as a tool of nation building significantly com-

promises their utility as a mode of addressing the harms arising from colonialism

including harms experienced in setter states such as Australia In order to con-

tribute to building a more robust transitional justice framework the following

section considers how settler colonial theory and practice can help explicate the

concept of structural justice and thus enable a revision of conventional transi-

tional justice approaches

Recognizing Structural Injustice Settler ColonialTheoryThe enduring effects of global practices of colonialism are now widely acknowl-

edged Disrupting the assumption that colonization ended with the formal ces-

sation of colonial governance postcolonial theorists have highlighted the

resilience of colonial forms of knowledge and structural arrangements which

continue to define global and national relations and shape the life experiences

and aspirations of the groups and individuals they encompass40 The notion of the

present as a postcolonial time has been abandoned in favour of an acknowledge-

ment of the intertwined and contiguous nature of the past present and future in a

postcolonial world

Settler colonial theory both calls upon and revises the generalizations of post-

colonial theory to account for the distinctive nature and ongoing impact of co-

lonialism in settler states where there was never even a formal withdrawal of

colonial administrators Here the continuity between the past and the present

is more literal with a lack of any transition to a decolonized state settler states

38 Orford supra n 339 Meister supra n 2840 From a vast literature see Edward Said Orientalism (New York Pantheon Books 1978) Samir

Amin Eurocentrism (New York Monthly Review Press 1989) Robert Young White MythologiesWriting History and the West (New York Routledge 1990) For critical review and analysis seePatrick Wolfe lsquoHistory and Imperialism A Century of Theory from Marx to Postcolonialismrsquoreview essay American Historical Review 102(2) (1997) 388ndash420 Dane Kennedy lsquoImperialHistory and Post-Colonial Theoryrsquo Journal of Imperial and Commonwealth History 24(3)(1996) 345ndash363 Ella Shohat lsquoNotes on the ldquoPostcolonialrdquorsquo Social Text 3132 (1992) 103ndash106

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 9

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Dow

nloaded from

effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

International Journal of Transitional Justice 2014 1ndash23

10 J Balint J Evans and N McMillan

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nloaded from

discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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Dow

nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

International Journal of Transitional Justice 2014 1ndash23

12 J Balint J Evans and N McMillan

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Dow

nloaded from

lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

International Journal of Transitional Justice 2014 1ndash23

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Dow

nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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nloaded from

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

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18 J Balint J Evans and N McMillan

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nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 10: The International Journal of Transitional Justice

effectively remain colonial formations Moreover settler colonial theory identifies

the unique structural relations that obtain between colonizer and colonized in

settler societies where the colonizer never leaves and where economic interest lies

in securing permanent sovereignty in the land41 Such an analysis points to the

structural nature of settler colonial harms whereby the violence of the original

dispossession of indigenous peoples ndash together with their subsequent subordin-

ation to colonial interests ndash helps to constitute settler sovereignty producing a

polity that seeks continually to fortify its legitimacy by marginalizing indigenous

claims

Settler colonial theory complicates the quest to draw clear distinctions between

past and present while also explaining the significance of long-term structural

injustice and the need for structural reform At a broad conceptual level settler

colonial theory thereby addresses some of the key criticisms leveled at transitional

justice by creating new possibilities for recognizing and responding to the con-

temporary reverberations of historically instituted harms Moreover in associ-

ation with related theoretical approaches it can contribute in more specific ways

to developing a fuller understanding of historically based structural injustices

In the first instance settler colonial theory is interested in the operations of

sovereignty as a concept whose capacity to transcend its social origins supports its

apparent neutrality as a key organizing principle of western political and legal

theory and practice The insights of postcolonial and critical historico-legal scho-

lars have informed this strand of settler colonial scholarship through identifying

the correlation between the emergence of sovereignty discourse and modern

Europersquos quest for expansion to the so-called New World42 Throughout this

period theologians and jurists strove to rationalize the violence and discrimin-

ation that characterized Europersquos imperial incursions against its self-representa-

tion as uniquely endowed with universal civilized and Christian values43

Through tracing the genealogy of what we now know as international law this

interdisciplinary work has identified the discrimination that inheres in the notion

and practice of sovereignty which was made particularly manifest in the lsquodoctrine

of discoveryrsquo In seeking to adjudicate European rivalries in relation to the lands of

others this legal precept was gradually consolidated starting in the 16th century

and remained consistent in its understanding of who would qualify as sovereign

Whichever European colonizer claimed first discovery would be accorded do-

minion but no matter which indigenous peoples were colonized they would

never be accorded more than the right of occupation In constructing

Europeans as bearers of so-called universal rights and values sovereignty

41 Patrick Wolfe lsquoNation and MiscegeNation Discursive Continuity in the Post-Mabo Erarsquo SocialAnalysis 36 (1994) 93ndash152 Lorenzo Veracini Settler Colonialism A Theoretical Overview(Basingstoke Palgrave Macmillan 2010)

42 Robert A Williams The American Indian in Western Legal Thought The Discourses of Conquest(New York Oxford University Press 1992) Anthony Anghie Imperialism Sovereignty and theMaking of International Law (Cambridge Cambridge University Press 2005)

43 Anthony Pagden Lords of All the World Ideologies of Empire in Spain Britain and France (NewHaven CT Yale University Press 1995)

International Journal of Transitional Justice 2014 1ndash23

10 J Balint J Evans and N McMillan

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ber 3 2015httpijtjoxfordjournalsorg

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nloaded from

discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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12 J Balint J Evans and N McMillan

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lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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nloaded from

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

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22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

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nloaded from

Page 11: The International Journal of Transitional Justice

discourse accordingly withheld its attributes from those it deemed to deviate from

these norms For centuries indigenous peoples have been caught up in sover-

eigntyrsquos normative thrall which has accommodated a number of disqualifying

characteristics ranging from different religious andor cultural practices to inad-

equate modes of land use44

In demonstrating the responsiveness of sovereignty discourse to European ex-

pansion from 1492 (as well as to events internal to Europe post-Westphalia more

than a century later) this scholarship highlights the ideological (and of course

legal) force of sovereigntyrsquos seeming neutrality in the present The approach helps

explain sovereigntyrsquos fortress status both in domestic law and as the basis for

membership in the international order The question of the colonial history of

sovereignty discourse therefore goes to the heart of considerations about struc-

tural injustice ndash the subordination of indigenous peoples and cultures through the

process of European expansion is embodied in the very concept that underpins

both nation-states and the international order they constitute45 Consequently

identifying the interests that have informed sovereignty discourse points to the

importance of recognizing the limits to reforms that continue to be conceived and

shaped within western worldviews and jurisprudences alone

In the second instance critical historico-legal approaches to settler colonial

theory highlight the constitutive violence of law particularly during the so-

called frontier period in settler colonies In the case of Australia the expansion

of settlement was commonly accompanied by settler calls to make certain repres-

sive laws apply to Aboriginal people alone Ranging from exemplary executions to

the refusal of testimony summary justice provisions and racialized legislation

designed to break up families and communities through to the extremes of

martial law in times of apparent crisis such suspensions of the rule of law contra-

dicted British claims to peaceful settlement In facilitating dispossession in the

face of indigenous peoplesrsquo resistance the resort to exceptional procedures in

domestic law also helped secure the territorial basis for sovereignty indigenous

peoplesrsquo resistance had shown that the discursive claims of international law over

who should or should not be sovereign were far from self-evident on the

ground46

In addition settler colonial theory underscores the specific structural features of

settler colonialism As noted above the recent theorization of the uniqueness of

the historical experiences of indigenous peoples in settler societies and therefore

of the distinctiveness of the settler colonial nation-state has challenged accepted

postcolonial understandings of enduring injustices47 Arising within the interna-

tional movement for decolonization and informed largely by the responses of

44 Anghie supra n 4245 Ibid James Anaya Indigenous Peoples in International Law (Oxford Oxford University Press

2004)46 Julie Evans lsquoWhere Lawlessness Is Law The Settler-Colonial Frontier as a Legal Space of Violencersquo

Australian Feminist Law Journal 30(1) (2009) 3ndash2247 Wolfe supra n 41

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nloaded from

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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12 J Balint J Evans and N McMillan

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nloaded from

lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

International Journal of Transitional Justice 2014 1ndash23

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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16 J Balint J Evans and N McMillan

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framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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Dow

nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

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recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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Page 12: The International Journal of Transitional Justice

diasporic intellectuals to the problem of why mass injustices persist despite the

formal departure of colonial powers postcolonial approaches commonly assume

a formal politico-legal point of transition Settler colonial theorists argue how-

ever that no such change is evident in the circumstances of indigenous peoples in

settler societies where declarations of national independence reflect the claims of

the settler colonizers vis-a-vis the lsquomother countryrsquo rather than those of the

colonized whose subordination the fledgling nations continue to uphold

Appreciating the significance of this particular experience of colonialism has

fostered a more comprehensive engagement with its consequences in the present

In his influential and wide-ranging body of work theorizing the practice of settler

colonialism Patrick Wolfe for example has explained the overwhelming import

of the fact that in the Australasian and North American colonies settlers came to

stay In contrast to the slave or franchise formations of the West Indies or India in

settler colonies economic interest revolved around securing permanent access to

the land of the colonized rather than in seeking to control their labour to exploit

its resources Settler sovereignty is predominantly premised on the ongoing denial

of indigenous claims an assertion already authorized discursively in international

law but which in needing to be made good on the ground formed the lived

reality of the frontier period when indigenous peoplesrsquo lands were appropriated

and their numbers decimated by the impact of violence disease and removal48

Wolfe argues that settlement should be seen as lsquoa structure rather than an eventrsquo

which unfolds in stages according to a persistent lsquocultural logic of eliminationrsquo in

support of settler hegemony49 This is a never-ending process that is evident not

only in the initial periods of invasion and dispossession but also in subsequent

periods of incarceration on reserves or missions and finally in the relentless

attempts to assimilate indigenous peoples into no longer counting as sovereigns

Consequently in Australia as a range of scholars has shown50 the Mabo High

Court decision (which recognized a limited form of indigenous land rights)51 and

resultant native title legislation do not so much mark a point of rupture as signal a

continuation of the process of denying or containing indigenous sovereignty an

assertion that is apparent in the overwhelming difficulties claimants have had in

bringing their cases before the courts52 and in securing legal determinations in

their favour53 Thus if decolonization in Michael Humphreyrsquos words can be seen

48 Ibid Evans supra n 4649 Wolfe supra n 41 at 9650 Ibid Gerry Simpson lsquoMabo International Law Terra Nullius and the Stories of Settlement An

Unresolved Jurisprudencersquo Melbourne University Law Review 19 (1993) 195ndash210 Stewart MothalsquoThe Failure of ldquoPostcolonialrdquo Sovereignty in Australiarsquo Australian Feminist Law Journal 22(2005) 107ndash126

51 Mabo and Others v Queensland (No 2) (1992) 175 CLR 152 Wayne Atkinson lsquoldquoNot One Iotardquo of Justice Reflections on the Yorta Yorta Native Title Claim

1994ndash2001rsquo Indigenous Law Bulletin 5(6) (2001) 19ndash2353 Ann Curthoys Ann Genovese and Alex Reilly Rights and Redemption History Law and Indigenous

People (Sydney University of New South Wales Press 2008)

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12 J Balint J Evans and N McMillan

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lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

International Journal of Transitional Justice 2014 1ndash23

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

by guest on Novem

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Dow

nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

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20 J Balint J Evans and N McMillan

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

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22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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Page 13: The International Journal of Transitional Justice

lsquofrom the transitional justice perspectiversquo as lsquoan instance of transition where there

was no accountability in other words where impunity prevailedrsquo54 the continu-

ance of settler colonialism can only constitute an ongoing injustice that has not

been adequately acknowledged ceased or addressed

Moreover in addition to articulating the salience of distinctive economic

imperatives in settler states55 settler colonial theory makes a major analytical

contribution to understanding structural injustices by identifying the ways in

which particular discursive frameworks serve to justify and embed them In

demonstrating the correlation between the material purposes and ideological

operations of setter states this scholarship powerfully elaborates the full scope

of the impact of colonialism and settler colonialism on both indigenous and non-

indigenous peoples Through attributing sovereignty to Europeans alone sover-

eignty discourse effectively inaugurated settler colonies as nascent settler states

that would eventually be legitimated through and within the international order

Meanwhile within the domestic realm a range of similarly racialized discourses

and practices continues to be available for appropriation ready to shore up pre-

vailing assumptions that indigenous peoples might not deserve redress for what

has been taken from them In these ways settler colonial theory clarifies the

circumstances in which the ideological or discursive harms arising from coloni-

alism risk becoming so great that they prevent meaningful public ndash as well as

official ndash acknowledgement of structural injustice and engagement with questions

of structural justice

Taken together these insights from settler colonial theory shed light on the

nature of structural injustice (as both materially and discursively configured) and

underscore the need for structural change in settler colonial societies By high-

lighting the inequity that informs global and national structures such as sover-

eignty and drawing attention to the distinct nature of the enduring unjust

arrangements that define settler colonial states the theory positions such struc-

tural injustices as integral to the historical and contemporary harms perpetrated

against indigenous peoples In doing so it opens up the possibility that structural

reform must be central rather than ancillary to any attempt to address the past

As one Assembly of First Nations leader Ovide Mercredi in Canada explains

lsquoOur fundamental problem is the nature of our relationship with Canada

Structural change in laws and policies is essentialrsquo56

54 Michael Humphrey lsquoRe-Entering History as Suffering Victims The Reach of Transitional Justiceinto Past Imperial Violence and Traumarsquo (paper presented at Human Rights and Imperialism inHistorical Perspective Sydney Australia 10ndash11 August 2012)

55 For related analyses see Daiva Stasiulis and Nira Yuval-Davis Unsettling Settler SocietiesArticulations of Gender Race Ethnicity and Class (London Sage 1995) Donald Denoon SettlerCapitalism The Dynamics of Dependent Development in the Southern Hemisphere (OxfordClarendon Press 1993)

56 Cited in Bonner and James supra n 10 at 19

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nloaded from

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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nloaded from

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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Dow

nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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Dow

nloaded from

Page 14: The International Journal of Transitional Justice

Structural and Historical Injustice The AustralianSettler StateAs former British settler colonies Australia New Zealand Canada and the US

share common histories of settlement that have helped shape the life experiences

and aspirations of indigenous peoples within each country including their over-

representation in a wide range of welfare indicators and most dramatically per-

haps in relation to the criminal justice system It is to the details of the Australian

case that we now turn in order to expand on the particularity of the structural and

historical injustices in settler states

While the Australian colonies were initially envisaged as repositories for British

convicts the seemingly widespread availability of land and associated opportu-

nities for economic advancement soon attracted large numbers of free settlers

With the rapid expansion of pastoralism the colonies eventually displayed the

distinctive characteristic of permanent settlements elsewhere in the British

Empire indigenous peoplesrsquo unproductive lsquowastelandsrsquo were converted into pri-

vate property that could support an agricultural capitalist economy As dispos-

session unfolded during the so-called frontier period ndash and surviving indigenous

peoples were removed to reserves or lived as fringe dwellers ndash settlers literally

lsquoreplacedrsquo them on their lands enabling Britain to realize on the ground the

sovereignty it already claimed discursively through international law57

Throughout the 19th century the Australian colonies held out opportunities

that generations of settlers accustomed to the strictures of Old World societies

could barely imagine Ideas about equality and individual freedom flourished and

by the time of federation in 1901 the newly independent Australia was at the

forefront of liberal democratic thought and practice58 For indigenous peoples on

the other hand the impacts of British settlement were devastating

Settlement proceeded in waves across the Australian colonies While the lands

of indigenous peoples of the southeast were swiftly brought within British control

frontier conditions existed in the territories to the north centre and west of the

vast continent well into the 20th century Despite important local differences

settlement observed common patterns as indigenous peoplesrsquo sovereignty was

transformed and transferred and settler sovereignty secured first through the

discursive denial of their sovereignty at international law and second through

their actual territorial dispossession their subsequent confinement on margin-

alized lands or reserves and their overwhelming subjection to the politics and

practices of assimilation designed to address lsquothe Aboriginal problemrsquo59

57 Deborah Bird Rose Hidden Histories Black Stories from Victoria River Downs Humbert Riverand Wave Hill Stations (Canberra Aboriginal Studies Press 1991) Wolfe supra n 41 Evanssupra n 46

58 Alan Atkinson The Europeans in Australia A History vol 2 (Oxford Oxford University Press1997)

59 Wolfe supra n 41 Veracini supra n 41

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14 J Balint J Evans and N McMillan

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In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

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nloaded from

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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Dow

nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 19

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

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nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

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22 J Balint J Evans and N McMillan

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nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

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nloaded from

Page 15: The International Journal of Transitional Justice

In common with the coercive legal and administrative regimes that were visited

upon indigenous peoples in New Zealand Canada and the US and in contrast to

the sovereign freedoms held out to settler populations Aboriginal and Torres

Strait Islander peoples throughout Australia were subjected to exceptional modes

of governance60 As the individual colonies asserted their independence and even-

tually united as a federation Australian settler governments largely continued to

deny recognition of indigenous sovereignty and law61 Underscored by already

well-worn colonial discourses on civilization and progress a vast array of dis-

criminatory policies and practices sought to reduce the numbers of people count-

ing as Aboriginal to limit their life experiences and movements and to secure the

breakdown of their culture including through the separation of children from

their families62

In the present Aboriginal people remain susceptible to exceptional forceful

and paternalistic lsquointerventionrsquo by the state As recently as 2007 for example the

federal government passed the Northern Territory National Emergency Response

to deal with alleged sexual abuse of children in communities an action initially

supported by the deployment of 600 soldiers and the suspension of the 1975

Racial Discrimination Act63 Meanwhile as critical criminologists have long

observed the impact of the colonial past is dramatically reflected in the rising

overrepresentation of indigenous peoples in custody At the time of writing adult

Aboriginal and Torres Strait Islanders were 14 times more likely to be imprisoned

than the dominant population in Australia For indigenous young people the

detention rate is 35 times higher than for their non-indigenous counterparts

Significantly while imprisonment rates have otherwise stabilized in Australia

rates for Aboriginal and Torres Strait Islanders have increased by more than 50

percent in recent years64 This is a matter of urgent concern that works to repro-

duce not only indigenous peoplesrsquo historical distrust of the police but also their

social disadvantage more generally through exacerbating family dislocation

60 Ann Curthoys ed lsquoTaking Liberty Settler Self-Government and Indigenous Australiarsquo specialissue of Journal of Colonialism and Colonial History 13(1) (2012) Julie Evans Patricia GrimshawDavid Philips and Shurlee Swain Equal Subjects Unequal Rights Indigenous Peoples in BritishSettler Colonies 1830sndash1910 (Manchester University of Manchester Press 2003)

61 While there was at least until the late 1830s some limited recognition of indigenous law andjurisdiction where British law was not ndash or could not be ndash imposed the notion and practice of anexclusively settler sovereignty prevailed once the frontier lands were secured See Lisa Ford SettlerSovereignty Jurisdiction and Indigenous Peoples in America and Australia 1788ndash1836 (CambridgeMA Harvard University Press 2010) Damen Ward lsquoA Means and Measure of CivilisationColonial Authorities and Indigenous Law in Australasiarsquo History Compass 1 (2003) 1ndash24

62 Wolfe supra n 41 Human Rights and Equal Opportunity Commission supra n 763 Jon Altman and Melinda Hinkson Coercive Reconciliation Stabilise Normalise Exit Aboriginal

Australia (Melbourne Arena Publications 2007) Nicole Watson lsquoThe Northern TerritoryEmergency Response ndash Has It Really Improved the Lives of Aboriginal Women and ChildrenrsquoAustralian Feminist Law Journal 35 (2011) 147ndash163

64 Australian Human Rights Commission Value of a Justice Reinvestment Approach AHRCSubmission to the Legal and Constitutional Affairs Committee (2013)

International Journal of Transitional Justice 2014 1ndash23

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nloaded from

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

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16 J Balint J Evans and N McMillan

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 21

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 16: The International Journal of Transitional Justice

poverty and cultural breakdown and working to reinforce harmful racialized

preconceptions65

While settler colonial theory sets out to explain the historical discursive and

structural features that define Australia as a settler polity the activism of indi-

genous peoples66 ndash and of concerned settlers ndash has of course also underpinned

important reforms particularly in relation to civil and political rights and various

rights to land67 In Australia as elsewhere concern about the continuing ramifi-

cations of the lack of consent to the original assertion of sovereignty informs

persistent activism and research around matters of indigenous justice in national

and international arenas by both indigenous and non-indigenous peoples seek-

ing to establish more lawful ways forward including through taking account of

non-western frameworks and ontologies68

Yet at an official level settler states have been reluctant to embrace such efforts

at reform as demonstrated in their prolonged opposition to the UN Declaration

on the Rights of Indigenous Peoples and in the entrenched interests of powerful

stakeholders who remain committed to preserving the status quo69 In maintain-

ing commitments to western frameworks settler polities are not readily open to

the view that indigenous ways of conceptualizing and exercising lsquosovereigntyrsquo

might also inform collective considerations of how to live together justly

Meanwhile in the case of Australia where no treaties were accorded to indigen-

ous peoples70 public discussions about the past risk also being framed as dama-

ging and divisive rather than beneficial and unifying71

In this context a key strand of academic critique of the existing official re-

sponses to indigenous injustice such as apologies and court cases is that such

approaches have in fact been used in settler states to strengthen rather than

challenge their sovereignty and legitimacy72 by placing them in a position to

determine which indigenous claims to injustice will and will not be recognized

and by confining interpreting and responding to such claims through the

65 Cunneen supra n 25 Harry Blagg Crime Aboriginality and the Decolonisation of Justice (SydneyHawkins Press 2008)

66 See Maynard supra n 4 Bain Attwood Rights for Aborigines (Sydney Allen and Unwin 2003)Belmessous supra n 4

67 Larissa Behrendt Chris Cunneen and Terri Libesman Indigenous Legal Relations in Australia(Melbourne Oxford University Press 2009)

68 Black McVeigh and Johnstone supra n 1269 After 20 years of negotiation the UN General Assembly adopted the declaration in September

2007 Only four negative votes were cast by Canada Australia New Zealand and the US Australiafinally adopted the declaration in April 2009 New Zealand in April 2010 Canada in November2010 and the US in December 2010

70 The doctrine of terra nullius prevailed See Behrendt Cunneen and Libesman supra n 67 HenryReynolds The Other Side of the Frontier Aboriginal Resistance to the European Invasion of Australia(Melbourne Penguin 1982) Also see Quinn supra n 22

71 Tony Birch lsquoldquoThe Invisible Firerdquo Indigenous Sovereignty History and Responsibilityrsquo inSovereign Subjects Indigenous Sovereignty Matters ed Aileen Morton-Robinson (Sydney Allenand Unwin 2007) Stuart Macintyre and Anna Clark The History Wars (Melbourne MelbourneUniversity Press 2004)

72 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

16 J Balint J Evans and N McMillan

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ber 3 2015httpijtjoxfordjournalsorg

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nloaded from

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 19

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 21

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ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 17: The International Journal of Transitional Justice

framework of the colonial legal system73 For example the Native Title Tribunal

process in Australia has been widely criticized for its restrictive operation and its

requirement that applicants show continuous connection to land where in many

cases due the history of dispossession this is impossible74 Meanwhile other

attempts to establish governmental responsibility for settler colonial harms

(through for example legal actions) have been actively contested by the state

rather than being state-initiated or supported75

Overall the pattern of reform in Australia has tended to be ad hoc and partial

rather than systemic and comprehensive as befits more fulsome attempts to re-

dress complex structural injustices Efforts at reform can be characterized as

welfare rather than justice oriented and as shying away from a thorough reima-

gining of sovereign relations between indigenous peoples and the state76 Key

initiatives such as the National Inquiry into the Separation of Aboriginal and

Torres Strait Islander Children from Their Families (1997) and the governmental

apology (2008) have only addressed specific instances of human rights violations

There has been no apology for example for colonization per se nor a thorough

engagement with the historical and contemporary impact of the full extent of

settler colonial governance repression and exploitation of indigenous commu-

nities since colonization77 Such limited approaches to engaging with the past are

problematic in that they can obscure other colonial harms and modes of redress

and the structural continuing nature of these harms As Alexander Reilly has

observed of the governmental apology for example it is one thing to express

73 For an account of these critiques see Moses supra n 574 Damien Short lsquoThe Social Construction of Indigenous lsquoNative Titlersquo Land Rights in Australiarsquo

Current Sociology 55(6) (2007) 857ndash876 Nicole Watson lsquoWhat Do We Want Not Native TitleThatrsquos for Bloody Surersquo in The Aboriginal Tent Embassy Sovereignty Black Power Land Rights andthe State ed Gary Foley Andrew Schaap and Edwina Howell (Melbourne Routledge 2013)

75 Jennifer Balint lsquoStating Genocide in Law The Aboriginal Embassy and the ACT Supreme Courtrsquoin The Aboriginal Tent Embassy Sovereignty Black Power Land Rights and the State ed Gary FoleyAndrew Schaap and Edwina Howell (Melbourne Routledge 2014) Bonner and James supra n 10

76 These include two significant national inquiries (the Royal Commission into Aboriginal Deaths inCustody (RCIADIC) in 1991 and the National Inquiry into the Separation of Aboriginal andTorres Strait Islander Children from Their Families in 1997) the High Court decision to over-throw the notion of terra nullius in Mabo and Others v Queensland (No 2) (1992) and the highlycircumscribed legislative recognition of native title in the subsequent Native Title Act of 1993 (andthe Native Title Amendment Act of 1998) a now defunct National Council for AboriginalReconciliation which was mandated to operate for 10 years from 1991 and now operates min-imally as Reconciliation Australia and in 2008 a formal apology to lsquoall Aborigines and StolenGenerationsrsquo (see Rudd supra n 7) A range of state-based reforms around justice issues followedthe RCIADIC although implementation of the recommendations varies markedly acrossjurisdictions

77 Jung supra n 6 Tony Barta lsquoSorry and Not Sorry in Australia How the Apology to the StolenGenerations Buried a History of Genocidersquo Journal of Genocide Research 10(2) (2008) 201ndash214Julie Evans Ann Genovese Alexander Reilly and Patrick Wolfe Sovereignty Frontiers of Possibility(Honolulu HI University of Hawaii Press 2013) Chris Cunneen lsquoIndigeneity Sovereignty andthe Law Challenging the Process of Criminalizationrsquo South Atlantic Quarterly 110(2) (2011)309ndash327 Although former Australian Prime Minister Paul Keatingrsquos Redfern Park speech is anexception Honourable Paul Keating lsquoRedfern Speech Year of the Worldrsquos Indigenous People ndash 10December 1992rsquo httpwwwkeatingorgaushopitemredfern-speech-year-for-the-worlds-indi-genous-peoplemdash10-december-1992 (accessed 24 February 2014)

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 17

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 19

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 21

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 18: The International Journal of Transitional Justice

regret about policies of the past but quite another lsquoto guarantee that similar laws

could not be passed againrsquo78

Transitional Justice as Structural JusticeProductive possibilities stem from approaching settler colonial injustice through

a transitional justice framework For example conceptualized as a proper subject

of transitional justice settler colonial injustices may become more appreciable as

harms Framing settler colonial harms through transitional justice discourse and

as comparable to (although not the same as) other more recent mass harms that

have gained more academic and public attention may enable non-indigenous

citizens in settler colonial contexts to recognize injustices in their nations that

otherwise may be hard to discern as a result of dominant official narratives In the

naming of these injustices using transitional justice frameworks they can also

become justice not welfare issues

Transitional justice offers a programme of legal processes that can enable pol-

itical and social change As a legal-based response to harm transitional justice

approaches privilege the role of law in political change as well as demonstrating

the ability of law as highlighted by Teitel to be both responsive and progressive

to in the words of Adam Czarnota lsquorespond at the same time both to the need for

radical change and the need for substantial continuityrsquo79 This use of law as a tool

for both the addressing of harm and institutional and social change can be a

strength in tackling long-term structural injustice

Transitional justice also offers the possibility of a more comprehensive response

to settler colonial harm That is in addition to being a form of justice defined by

its temporality (a transitional justice) transitional justice is a justice model It is

concerned with the importance and mechanics of recognizing and redressing

widespread and state-sanctioned harm through the use of political-legal initia-

tives such as trials truth commissions apologies and reparations to achieve pol-

itical and social goals (from accountability to reconciliation to reconstruction) It

is in this sense that the UN has emphasized the pluralistic capacity of transitional

justice The secretary-generalrsquos seminal report on transitional justice makes it

clear that lsquowhere transitional justice is required strategies must be holistic incor-

porating integrated attention to individual prosecutions reparations truth-seek-

ing institutional reform vetting and dismissals or an appropriately conceived

combination thereofrsquo80 While such initiatives may not always be so comprehen-

sive in practice transitional justice can offer tools to place responses to indigen-

ous injustice within a broader lsquojustice agendarsquo and to rethink underlying unjust

78 Alexander Reilly lsquoSovereign Apologiesrsquo in Evans et al supra n 78 at 21479 Adam Czarnota lsquoLaw as Mnemosyne and as Lethe Quasi-Judicial Institutions and Collective

Memoriesrsquo in Lethersquos Law Justice Law and Ethics in Reconciliation ed Emilios Christodoulidisand Scott Veitch (Oxford Hart 2001) 127

80 lsquoReport of the Secretary-General on the Rule of Law and Transitional Justice in Conflict andPost-Conflict Societiesrsquo UN Doc S2004616 (2004) 9

International Journal of Transitional Justice 2014 1ndash23

18 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 19

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 21

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 19: The International Journal of Transitional Justice

relations through which both indigenous and non-indigenous communities may

more collectively and holistically address the past and its ongoing effects

The use of a multifaceted framework to conceptualize and address settler co-

lonial injustice could function as a useful counter to the highly politicized and

often ad hoc and piecemeal top-down governmental responses that have been

offered to date81 In Canada a restrictive focus on the experiences of certain

residential school claimants was used by the government to shift attention

from the question of group-based and socioeconomic rights for indigenous

Canadians82 In Australia government reconciliation initiatives can be under-

stood as a case of reconciliation without justice particularly in the context of a

continuing colonial framework83 In other contexts symbolic acknowledgements

of past injustice such as apologies truth commissions and commissions of in-

quiry have generally been used in lieu of rather than in combination with other

initiatives to redress the past such as reparations

Yet particularly in the context of redressing indigenous injustice settler colo-

nial theories are needed to revise critically dominant transitional justice

approaches By unsettling any clear distinction between the past and the present

such theories can be used to challenge the artificiality of the temporal framework

that currently shapes transitional justice stymying its ability to recognize and

redress long-term harm By underscoring the significance of history as well as its

enduring implications these theories serve to counter the current failure of tran-

sitional justice to lsquolook backwardrsquo to causes and histories as well as to look forward

to broader more structural solutions Settler colonial theory also provides con-

ceptual tools to question the current conceptualization and mobilization of tran-

sitional justice as a state-building enterprise This interrogation is particularly

important if transitional justice is to be extended to settler societies As Courtney

Jung highlights transitional justice is a blunt tool if it simply serves to consolidate

the sovereignty of the settler state84 Settler colonial theories and experiences can

help to explicate the nature of structural harms as practically and ideologically

manifest

Recent scholarship on structural injustice recognizes the need for a more com-

prehensive mode of accounting for mass harms than approaches that focus pre-

dominantly on state-based actions andor individual culpability Political

philosopher Catherine Lursquos development of Iris Marion Youngrsquos early theoretical

work on structural injustice is pertinent to our efforts to highlight the long-term

81 Jung supra n 682 Matt James lsquoA Carnival of Truth Knowledge Ignorance and the Canadian Truth and

Reconciliation Commissionrsquo International Journal of Transitional Justice 6(2) (2012) 182ndash204See also Jung supra n 6 Nagy supra n 15

83 Short supra n 10 Damien Short lsquoWhen Sorry Isnrsquot Good Enough Official Remembrance andReconciliation in Australiarsquo Memory Studies 5(3) (2012) 293ndash304 Reilly supra n 59 AnneOrford lsquoRitual Mediation and the International Laws of the Southrsquo Griffith Law Review 16(2)(2007) 353ndash374

84 Jung supra n 6

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 19

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 21

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 20: The International Journal of Transitional Justice

historical injustices arising from colonialism85 Lu notes that injustices such as

colonialism are facilitated and legitimated through complex local and global

networks whose redress requires expansive rather than narrow analytical frame-

works86 Injustice is conceived of as a product of inequitable structures as well as

individual action In this view a structural justice model would involve a shift

from individualistic and state-focused modes of redress towards a more thor-

oughgoing evaluation of the structural vestiges of lsquopastrsquo harms and an openness to

deep and wide-ranging reforms including indigenous jurisprudences which

would transform social political legal and economic arrangements that enabled

the harms A structural justice would pay attention to both the causes and the

legacies of the initial harms

Thus what emerges from this discussion is a proposal for an enhanced transi-

tional justice model that draws on the fieldrsquos strength as a programme of legal

processes enabling social and political change while also focusing on structural

and historical harm This model is characterized by its foregrounding of structural

justice which opens the state and its foundations up to question rather than

simply reaffirming them and acknowledges the contiguity between the harms

of the past and those of the present It is attentive to the complex nature of

structural injustice which is politically socioeconomically legally and ideologic-

ally located and ingrained in practical societal arrangements and institutions as

well as dominant public discourses

This call to broaden the scope of transitional justice sits more comfortably with

certain approaches to the field than others By some accounts extending transi-

tional justice approaches beyond the context of a moment of political transition

to account for more than civil and political violations may compromise the dis-

tinctiveness of the transitional justice framework However the purpose here is

not to suggest that transitional justice become conflated with the general pursuit

of socioeconomic redistribution through equitable governance Rather our

model seeks to build on the fieldrsquos key concerns ndash namely to acknowledge and

redress mass harm as a matter of justice and as a means of grounding a shared

future ndash to imagine a justice-based rather than welfare-based model for dealing

with the past and its legacies that is not unduly blind to certain episodes of

injustice and certain dimensions of societal and individual harm

In current academic work on transitional justice in settler colonial contexts

some hesitations have been expressed about the potential disjunctures between

transitional justice approaches and settler colonial realities One such concern is

the clear lack of transition that characterizes such contexts Nagy for example

notes that lsquowhile it is important to acknowledge and address systemic human

85 Iris Marion Young lsquoResponsibility and Global Justice A Social Connection Modelrsquo SocialPhilosophy and Policy 23(1) (2006) 102ndash130 Iris Marion Young and Martha NussbaumResponsibility for Justice (Oxford Oxford University Press 2011)

86 Catherine Lu lsquoColonialism as Structural Injustice Historical Responsibility and ContemporaryRedressrsquo Journal of Political Philosophy 19(3) (2011) 261ndash281

International Journal of Transitional Justice 2014 1ndash23

20 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 21

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 21: The International Journal of Transitional Justice

rights abuse it is also rather awkward to affix the label ldquotransitionalrdquo to justice

long denied in liberal democraciesrsquo87

It may be however that we need to think about transition differently ndash as not

solely transition to a democratic regime as initially understood in the transitional

justice paradigm but also as transition from unjust relations to just relations and

the transformation of the social political economic and legal frameworks such as

those that underlie settler colonialism It is the structural injustice of settler co-

lonialism and colonialism generally that continues as the core injustice into the

present This includes the ongoing denial of indigenous sovereignty and the po-

tential to place indigenous peoples outside the rule of law in governance

A transitional justice framework enhanced by the notion of structural justice

may also provide the theoretical resources to rethink the relation between justice

injustice and transition and to reconsider what it means to pursue just outcomes

as a society It may indeed prompt consideration of how justice measures could

themselves facilitate a process of transition rather than simply respond to it Jung

writes of the lsquotransformational capacityrsquo of transitional justice measures88 while

Wendy Lambourne has discussed how transitional justice may be understood as a

lsquotransformative justicersquo89 On this view transitional justice ndash reconceived as a

discourse and practice that enables as well as accompanies transition ndash could be

more proactive in orientation Rather than pursuing redress for past injustice as a

singular goal transitional justice may be directed towards ensuring substantive

justice through prompting societal political and economic change that addresses

the structural underpinnings of harm and injustice in societies

A robust transitional justice model with a broader justice agenda may also be

better placed to identify and analyze the range of different harms that might

constitute the target of transitional and other justice measures A focus on a

wider spectrum of events of injustice may further a recognition of the different

types of harm that may require redress ndash from the traditional focus of transitional

justice on physical harms to acknowledgement of the significance of socioeco-

nomic lsquoculturalrsquo and lsquointergenerationalrsquo injuries90

Unsettling the presentist and linear temporal focus of transitional justice can

also facilitate the elaboration of a justice framework premised on a complex and

nuanced approach to lsquopastrsquo harms Recognition of the ongoing resonance of these

harms could pave the way for a theorization of the nature of historical harms

Building on existing acknowledgements of the intergenerational transmission of

trauma in affected families and communities there is scope to inquire further into

the attributes of historical injustices that remain unaddressed Do such injustices

simply endure manifesting as they did when inflicted do they become com-

pounded over time or indeed does the character of the injustices change with

87 Nagy supra n 15 at 281 See also Jung supra n 6 Arthur supra n 1688 Jung supra n 689 Lambourne supra n 1390 Jung supra n 6 Meister supra n 28

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 21

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 22: The International Journal of Transitional Justice

the passage of time altered by either their longevity or societal failure to effect-

ively acknowledge and address them

Moreover a more inclusive approach could result in new practical interven-

tions That is if transitional justice processes are extended to address expansive

histories of past oppression their scope may need to be temporally broad Rather

than focusing on the establishment of specific mechanisms that operate for a

defined period the emphasis may shift to ongoing and long-term interventions

designed comprehensively to address structural injustices91 Such approaches

may be particularly relevant in settler colonial societies where injustices have

been so enduring Meanwhile as Jung notes standalone initiatives such as apolo-

gies and truth commissions must be situated within broader programmes de-

signed fully to redress the past92 What remains critical however is that these are

not simply conceived within western frameworks but also informed by indigen-

ous worldviews and that they seek to transform inequitable institutional frame-

works that have been largely unquestioned93

ConclusionAs we have illustrated the practical realities of settler colonial societies demand

more of transitional justice They foreground the need for the fieldrsquos frameworks

to more substantively recognize and address structural and enduring injustices

manifested in the continuing denial of sovereignty and the lsquoexceptionalismrsquo ac-

corded to indigenous peoples In this respect settler colonial theory usefully

draws attention to the structural injustices (and constitutive violence) that under-

pin the inauguration and ongoing existence of settler colonial formations

Moreover in highlighting the colonial history of seemingly neutral western con-

cepts it can shed light on the current failings of transitional justice particularly its

inability to engage with structural harm which is relevant not only for postco-

lonial and settler colonial societies but also for other postconflict contexts

Institutional reform which in some senses shaped the early agenda of transi-

tional justice approaches in Latin America and Eastern Europe may again be

foregrounded as an integral element of addressing the past An approach to settler

colonial harm based on transitional justice and settler colonial perspectives may

have the capacity to prompt new ways of engaging with historical injustice that are

comprehensive in orientation informed by indigenous as well as non-indigenous

frameworks and premised on the pursuit of structural change in order to redress

long-term and short-term harms

We are proposing a new justice model for transitional justice that is premised

on recognizing the continuities between the past present and future and that

91 Arthur supra n 1692 Jung supra n 693 For related discussion see Mark Rifkin lsquoIndigenizing Agamben Rethinking Sovereignty in Light

of the ldquoPeculiarrdquo Status of Native Peoplesrsquo Cultural Critique 7 (2009) 88ndash124 Black McVeigh andJohnstone supra n 12 Birch supra n 80

International Journal of Transitional Justice 2014 1ndash23

22 J Balint J Evans and N McMillan

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from

Page 23: The International Journal of Transitional Justice

recognizes the structural frameworks that both constitute and continue current

and past injustices This model draws upon the strengths of transitional justice as

a law-based programme of redress and the insights of settler colonial theory that

highlight the continuities between past and present and the impact of settler

colonialism in societies like Australia as an example of ongoing structural injust-

ice This enhanced transitional justice model is premised on the importance of

structural justice and also the role of law in initiating change and of addressing

structural injustices that are often neglected by conventional justice responses

In settler colonial states where questions of historical and structural injustice

risk being downplayed and discredited the imperative to explore new ways of

conceptualizing and responding to the harms inflicted on indigenous peoples a

transition from unjust to just relations remains strong An enriched transitional

justice may enable greater recognition of colonial harm and hence foster concep-

tual and practical approaches to more substantively address the structural injust-

ices that persist in settler colonial postcolonial and even postconflict states Such

an approach may enable the redress of harm as well as establish the grounds for a

just future

International Journal of Transitional Justice 2014 1ndash23

Rethinking Transitional Justice Redressing Indigenous Harm 23

by guest on Novem

ber 3 2015httpijtjoxfordjournalsorg

Dow

nloaded from