Aborigines fight for justice

By Myint Zan

CANBERRA (JP): On July 31, 1997, the High Court of Australia decided that a 1918 Northern Territory ordinance, which had given the "Chief Protector of Aborigines" the right to remove children from their parents, did not amount to genocide.

A group of "stolen children", some of whom are now more than 70 years old, had lodged a suit that the ordinance and the actual removal of Aboriginal children from their parents was not only unconstitutional but also "genocidal". The children were to be adopted by white Australian "foster homes".

The High Court, in a unanimous judgment, rejected those claims.

As a consequence, the claim that compensation be given to these "stolen children" also failed, at least, in that particular case and in the context of the High Court decision.

The claim that the 1918 ordinance and the actions of successive Australian governments, in removing Aboriginal children from their mothers, amounted to genocide was based on the definition of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

Australia is a party to the convention. The relevant provision of the convention reads: "Acts intended to destroy in whole or in part, a national, ethnical (sic), racial or religious group as such... (the convention then lists "acts" such as) forcibly transferring children from the group."

Justice Daryl Dawson stated in his judgment that there was nothing in the ordinance which authorized the commission of acts which had any intent to destroy any Aboriginal group.

In contrast, a few months earlier, in a report entitled Bringing them Home, it was stated that the forcible removal of children did amount to genocide. The report was mainly authored by Sir Ronald Wilson, a former High Court judge himself and outgoing president of Australia's Human Rights and Equal Opportunity Commission.

If one compares the High Court's judgment and the contrary view on genocide in the Human Rights Commission's report, the High Court's ruling certainly has a much stronger legal imprimatur.

Ordinarily, the word "genocide" may conjure up horrifying "visions" of the German holocaust, the killing fields of Cambodia, and also that of Bosnia and Rwanda. But technically speaking, the phrase "killings" appeared only in certain parts of the definition of genocide in the convention.

Without, in any way, trying to be flippant, one could say that there are genocides and there are genocides. The enormity of the genocide of the holocaust and the killing fields should not trivialize the "arguable" genocide committed against the Aboriginal people nor should it in any way lessen the importance of the more "prominent", "bigger" and palpably more disastrous genocides.

Internationally speaking, under article IX of the genocide convention, a state party which has accepted the compulsory jurisdiction of the International Court of Justice (ICJ) as well as being a party to the genocide convention can bring the legal issue of "responsibility" of a state for genocide before the International Court of Justice. (This issue should not be mixed or equated with "trying" those who were responsible for genocide such as the UN established tribunals in Yugoslavia and Rwanda). This has happened only once in the 50 year history of the ICJ in the 1992 suit of Bosnia-Herzegovina against the rump of Yugoslavia.

Even in the case of the Cambodian killing fields and a large number of states in the world community who were members of the same convention, it was found to be inexpedient to file a suit in the ICJ concerning the issue of responsibility for genocide of Democratic Kampuchea. Notwithstanding the fact that Democratic Kampuchea was a member of the genocide convention and had accepted the compulsory jurisdiction of the ICJ.

Hence for the time being, securing a formal, judicial determination or pronouncement that the various acts committed against Australian Aborigines in the case of the "stolen children" amounted to genocide seems to be "closed" both domestically and internationally.

Coming back to the domestic scene in Australia, a recommendation, in contrast to a finding, which was made in the report Bringing them Home is noteworthy. It strongly recommended that the Australian government should apologize to the Aboriginal people for the injustices perpetrated on the "stolen children".

So far, the Federal government of Australia has refused to apologize. However a resolution was passed recently in the New South Wales state parliament. The members offered an apology to the Aboriginal people for the injustices that had been inflicted on them in the past.

One reason for this reluctance appears to be a disinclination on the part of the Australian government to accept, in the words of Prime Minister John Howard, "a black armband view of Australian history".

In this regard, some of my former, white Australian students, who were mainly from rural areas, had repeatedly spoken out against the Australian government's affirmative action programs for the Aboriginal people. They had in effect said that the programs emerged out of "guilt" for the acts which their ancestors might have committed against the Aborigines.

In the United States too, there have been recent moves to pass a one-sentence resolution in the U.S. Congress to apologize for the past mistreatment of African Americans. Whereas "Negroes" (as African Americans were then called) got the right to vote many decades ago, it was only in 1967 that Australian Aborigines began voting.

The landmark Brown decision of the U.S. Supreme Court, which ruled that segregation of schools by race was unconstitutional, was made in 1954. It was only in 1992, in the famous Mabo case that Australian jurisprudence did away with the legal notion, if not legal fiction (and largely a deadwood international law doctrine of the colonial era) that Australia was terra nullius (land belonging to no one) before white settlement.

The 1992 Mabo judgment -- as well as the 1992 WIK decision which gave limited, qualified indigenous land rights as "native title" to aboriginal people -- has been attacked by various conservative politicians, farmers, the mining industry and other vested interests.

The philosopher Thomas Nagel said that -- as far as past misdeeds committed either individually, collectively or by one group of people against another are concerned -- there is a vital distinction between knowledge and acknowledgement.

In the Australian context vis-a-vis indigenous and non- indigenous relations there has been "demurrers", if not denials, from some quarters as to the content and configuration of "knowledge" (of past mistreatment and the present predicaments of Aborigines).

An apology may perhaps clear up the non-existence "ontological" problem (with apologies for the tautology about the ontology) of past injustices perpetrated against the Aboriginal people of Australia. It may also be a positive step to improve Aboriginal and non-Aboriginal relations.

In addition it may help ease any frustration that may have been felt by segments of the Aboriginal community in the aftermath of the High Court decision on the "stolen children" case.

The writer is a lecturer at the School of Law, Deakin University.