Apologies – And the Legacy of an Unlawful Application of ‘Terra Nullius’ in Terra Australis

This week marks the contentious celebration of Australia Day (26 January, the day in 1788, the first settlers arrived from Britain) in Australia, and prompts thoughts on issues regarding the treatment and predicament of Australia’s First Nation’s Peoples. This article advances the argument that without any accompanying, appropriate compensation, formal apologies proffered by nation-state governments for the mistreatment of their First Nations’ citizens fails to reach the threshold of adequacy as a remedy in either domestic or international law.

I submit that on their own, apologies are inadequate to create normative legal or other consequences. Further, in my view, apologies are arguably a way for governments to avoid compensating and/or including First Nations’ Peoples.

Several governments, including that of Australia, have apologised to Indigenous persons for harms inflicted by the impost of colonialism. Contrary to many views, I argue that the preferable method of redress is that adopted in countries such as Canada and New Zealand concerning the compensation paid in legal remediation and reparation for the mistreatment of their Indigenous people. In these jurisdictions, governments acknowledge land rights, but also provide pecuniary compensation for violations of Indigenous rights.[1]

I also suggest that, by parallel circumstance, the German Government made substantive and effective redress to Holocaust victims beyond mere apologies through the payment of monetary compensation to oppressed persons or their heirs. Succinctly exploring a major counterargument at law, I propose that saying ‘sorry’ to Indigenous Australians has had little practical effect in providing them with redress. Accordingly, I submit that apologies serve a negligible purpose in the development of international law and/or providing normative legal consequences.

What role does apology play as a remedy?

In New South Wales (an Australian jurisdiction), apology may be legally defined as ‘…an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter.’[2] Prue Vines argues that if an apology is tendered to an aggrieved person, that person is less likely to engage in litigation.[3] Generally, therefore, the normative (measurable or evaluative) consequence of apologies is that once an apology has been made, nothing more needs to be done, even if something more ‘ought’ to be done.[4] As a matter of evidentiary value, this appears to be the principle upon which the Australian government has relied since its apology in 2008, and its announced intention to negotiate a Treaty with Indigenous Australians in 1988-9. Since these events, nothing further has taken place.

Many First Nations’ people have refused to accept apologies, viewing them as governmental publicity opportunities.[5] For example, the leading Canadian First Nations Grand Chief refused to join visiting British Royalty at a symbolic event at which an apology was to be offered. The Grand Chief, leader of 115 Canadian First Nation tribes, described the event as an ’empty-gesture’ ceremony.[6] In denouncing this symbolic event, the Chief opined, ‘[w]ith the deepening poverty of our communities, remembering the murdered Indigenous women, girls and the ongoing negligence of Indigenous child welfare policies across this country, in good conscience, I cannot participate in [this] …ceremony.’[7]

Arguably, the Supreme Court of Canada does not support empty gestures either as it has recognised native title (known as Aboriginal Title in Canada) in a series of cases.[8] In advance of this, in Haida Nation v Minister of Forests,[9] it went further than most by recognising that there was indeed a Crown obligation to Indigenous people. This ruling acknowledged that the obligation is sometimes perceived to be a generalised overarching fiduciary obligation.[10] A reading of several Canadian authorities indicates that the fiduciary obligation to act honourably, while unconventional, creates a requirement for far greater recognition of the rights of dispossessed persons than a mere apology without any accompanying compensation.

Many other apologies have been made to First Nation Peoples. For example,

[…] the New Zealand Government has made specific apologies on two different occasions, the Canadian Government has apologised for its role in the administration of special residential schools, the United States Government has apologised for its overthrow of the Kingdom of Hawaii, and the Norwegian King apologised for his state’s past policies….[11]

However, I propose that the apologies made by the New Zealand government would have been relatively ineffectual had they not been accompanied by the award of NZ $175 million worth of fishing rights to the Maori People resulting from a commercial settlement reached after the Treaty of Waitangi (Amendment) Act 1985. That Act was paramount in that it empowered the Waitangi Tribunal to hear claims of treaty breaches by the Crown since 1840.[12]

Notwithstanding the restoration of some amount of dignity achieved through an apology, the best form of redress is arguably reflected in that made by various German Governments to victims of the Holocaust and their families, represented in the Conference on Jewish Material Claims Against Germany. The total global allocations for 2019 from this Tribunal are USD $564 million, and more than USD $70 billion has been paid in compensation since 1951. Currently, this covers in-home care for frail aged persons and monthly pensions.[13]  Compensation is made to both individuals and bodies that provide food, medicines and other services to survivors.[14] It is notable that most of this money was paid before Germany’s Chancellor apologised to the Jewish People in a speech in the Israeli Parliament in 2018.[15]

Given the above comparison, it is arguable that an apology may often be politicised, especially when it does not accompany any offer of compensation.[16] Therefore, it does not reach the threshold of an effective remedy at law. Accordingly, if an apology is not given in unqualified terms and backed by material compensation that provides a practical remedy, it is deemed ineffective. Lending support to this general proposition, Foley wrote at the time of The Rudd government’s apology in Australia:

The only thing that apologies do as far as I can see, is at the very most…[make admission of] a wrongdoing. Which gives minimal comfort to the wronged. Unless it’s accompanied by some sort of meaningful form of compensation or reparations for past wrongs that have been committed, then it is a farce.[17]

Why do governments apologise?

Generally, it is arguable that apologies are made to avoid liability, or at least further liability.[18] Many apologies are actually made with an express disclaimer of liability (as exemplified by the US case discussed below).[19] Ipso facto, while they may make good political pageantry, apologies (absent accompanying compensation frameworks) are practically ineffective as a remedy.

In the Australian instance, Foley argues that the apology to the ‘Stolen Generation’ was something that enabled the ‘Australian people to pat themselves on the back and delude themselves into thinking that they’d done something significant for the Aboriginal people, which in fact they [had not].’ He generally sees apologies being a duplicitous means of appeasing consciences, both domestically and internationally. This, he argues, gives both domestic and international stakeholders ‘a further excuse for not having expressed concern’. These remarks are echoed in slightly more academic language by writers such as Lawry, [20] who complains about a lack of reparations.

Stephen Pitt-Walker
Stephen Pitt-Walkerhttps://www.smiknowledge.com/Executive%20Education.php
STEPHEN has more than 25 years professional experience in strategic advisory, management consulting and complex strategic outsourcing acquisition integration management across multiple industry sectors. He has consulted independently since 2009. He is currently the chief executive of Integrated Strategy Solutions (ISS) – a strategy education and advisory firm; Founder of the International Strategy Collegium (ISC) - a ‘Think Tank’ for the interdisciplinary development of strategy – and a group of the same name on Linked In; and is global partner, leading the Strategy Discipline, at the Business Insights Group. Prior to this he was Vice President and regional Financial Services practice lead at Gartner Consulting (Asia-Pacific). Stephen has substantial international business and management experience having lived and worked in East Asia, the UK, Europe and the United States (holding global and multi-geography responsibility in a number of premium brand, multi-national corporations). Stephen is a former military officer, a graduate of Australia’s premier military academies and holds multiple postgraduate degrees and awards for outstanding academic achievement and teaching. He is a graduate (Certified Strategy Practitioner) and Fellow of the Strategic Management Institute (Australia), is a past Fellow of the Strategic Planning Society (London), and is a passionate life-long learner, educator and author. Stephen also has a long standing humanitarian interest (especially in the area of Human Rights under International Humanitarian Law in post conflict zones). He is the Founder and Director of the Global Human Rights, Not-for-Profit Organization, is an active volunteer International Human Rights advocate and International Relations researcher & analyst. His specialised areas of concern are the Middle East & Africa and East Asia.
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