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

Foley and Lawry argue that the US ‘apology’, for example, secreted in s 8113 of the Department of Defense Appropriations Act 2010 (USA), is meaningless. This provision acknowledges ‘that there have been years of official depredations, ill-conceived policies, and the breaking of covenants… regarding Indian tribes […together with] many instances of violence, maltreatment, and neglect inflicted on First Nations People by citizens of the [USA]’. However, the same provision also contains a disclaimer that it neither ‘authorizes nor supports any claim against the [USA]’ by Indigenous persons for such acts.[21]

Besides the restoration of a modicum of dignity, the International Law Commission’s Draft Articles on State Responsibility[22] declare that, in addition to payments of compensation for an international wrong, a formal apology may also be offered as satisfaction. Following this, Barrie posits that an apology can formally ‘set the record straight’ pertaining to past wrongs where a political acknowledgement is needed and serves as a starting point for new government policies, as evidenced in South Africa post-apartheid.[23] However, even he indicates the need for compensation to accompany apologies.[24] As explained below, the Australian example demonstrates that introducing new policies, post-apology, do not necessarily provide effective remedy. On weight of evidence, I propose that the argument carried in this article forms the better view.

Did saying ‘sorry’ to Indigenous Australians provide them with any practical remedy?

Sixteen years before the apology, in 1991, Indigenous Australian persons were less than eight times more likely to be imprisoned than the overall population. However, five years after the Rudd-government apology, on 30 June 2012, Australian gaols held 29,383 inmates.[25] Indigenous prisoners, at 27% of that total, represented over 10 times their proportion of Australia’s overall population.[26] Accordingly, the proportion of Indigenous prisoners to the overall population increased (worsened) by around 30% between 1991 and 2012,[27] and 1.9% of the entire Australian Indigenous adult population was imprisoned.[28]

Thalia Anthony suggests that the input of Indigenous elders into the sentencing process, at least within the Northern Territory, was reduced to the point of virtual nonexistence within the same period. He posits that this reduction contemporaneously contributed to the increased rates of incarceration.[29] Elsewhere, she and co-author Marchetti state that Indigenous Canadians are over-represented at a nine times greater rate than the overall Canadian population in provincial and territorial gaols, whereas New Zealand’s Maoris are overrepresented by a factor of 3.5 times.[30] The sort of innovative approaches to sentencing discussed by Marchetti,[31] published five years after the Rudd apology, have not been implemented and little has been done to remedy the over-representation situation, especially in Australia.[32]

As a simple calculation, 27% of the amount spent some eight years ago in Northern Territory prisons alone amounts to over AUD $27.5 million.[33] An investment of some part of this sum in more properly targeted early intervention[34] is likely to have delivered the sort of opportunities that relieve the disadvantages that lead to poor parenting, domestic violence,[35] unemployment,[36] and general poverty.[37] In this regard, the Closing the Gap report indicates that the amelioration of these difficulties necessitates more than a combination of an apology, un-targeted funding and/or imprisonment.[38] In respect of this, (Australian Indigenous Senator) Patrick Dodson proposes that spending money without any clear aims will not solve the above problems and argues that multi-faceted, First Nations inclusion in the polity is required for their amelioration.[39] This, together with appropriate compensation and mechanisms for its disbursement, as yet denied, are required for a real resolution.

The above cycle of disadvantage or ‘structural violence’[40] is congruent with the arguments raised by Galtung and later by Weatherburn.[41] Extending these conceptions, Weatherburn suggests that [t]he cure for [disproportionately high Indigenous rates of] crime is not a rearrangement of the economic fabric of society alone; rather, it is a rearrangement of the thinking of offenders that might address this cycle by investing in early intervention. The statistics cited in this article demonstrate that mere apology has been insufficient in achieving such ‘rearrangement’ in the thinking of Australia’s Indigenous population.

Even Native Title rights, which might be perceived as an extended form of apology,[42] do not constitute compensation. In Australia, unlike Canada,[43] they are not even a recognised form of property, albeit that compensation can now be awarded for loss/extinguishment of Native Title on a case by case basis.[44] The concept of property was defined in Milirrpum v Nabalaco,[45] as including the owner’s ‘… right to exclude others and the right to alienate’; native title does not give an individual the right to exclude or alienate others. Additionally, the Native Title Act 1993 does not allow an individual to exercise non-commercial rights.[46] Some researchers go one step further and even reject treaties, arguing that ‘treaties, deeds of settlement and agreements (and even clear positive judicial direction) do not hold secure the rights of Indigenous peoples when such rights remain subject to the [will] of parliament.’[47]

Additionally, it is arguable that only measures that help achieve a ‘rearrangement of the thinking’ (raising dignity, pride, independence, and self-belief) both in Indigenous and non-indigenous people through the payment of effective compensation will aid in the reduction of the relative disadvantage caused by the damage inflicted by forced colonial subjugation. The notion that any substantive advantage is delivered through ceremonies at which apologies alone are delivered by inheritors of a colonial power structure is rejected. Even treaties and settlements which lack a framework for implementation, even when aimed at providing a better family life for all Indigenous and, therefore, better social and economic outcomes, provide insufficient remedy for those dispossessed by colonialism.

In this respect, it is my contention that apologies proffered without accompanying, targeted and substantive compensation packages have negligible practical effect. In Australia, they even arguably mislead Indigenous and non-indigenous persons to the perception that something of practical, legal value has been delivered by their government when in fact it has not. Ultimately, because apologies alone are ineffective, I submit they should not be regarded as a remedy in municipal nor international law. On this basis, they also do not create normative consequences in the Australian jurisdiction; the question begging is one of substance for the Australian government, the electorate and society.

• [1] See for example Tsilhqot’in Nation v British Columbia [2014] SCC 44. In New Zealand, there is an Office of Treaty Settlements which negotiates claims with Maori. For a list of negotiated claims with pay-out values, see <https://www.tpk.govt.nz/mi/a-matou-mohiotanga/business-and-economics/tribal-assets/online/2>.
• [2] Civil Liability Act 2002 (NSW) s 68.
• [3] Prue Vines, ‘The Apology in Civil Liability: Underused and Undervalued?’ (2013) 115 Precedent 28.
• [4] Here, I share the criticism of legal language used as normative discourse made by Luis Duarte d’Almeida, ‘Legal Statements and Normative Language’ (2011) 30 Law and Philosophy 167, 173.
• [5] Gary Foley, ‘Duplicity and Deceit: Rudd’s Apology to the Stolen Generations’ (2008) 36 Melbourne Historical Journal 1​.
• [6] Ashifa Kassam, ‘Canada First Nations chief won’t join UK royals for ’empty gesture’ ceremony’, The Guardian (international) 27 September 2016.
• [7] Tony Jones, ‘Indigenous leader boycotts Black Rod event attended by Prince William in protest of Canadian government’, The Independent (Canadian edition) 27 September 2016.
• [8] These cases include Guerin v R [1984] 2 SCR 335 (Supreme Court of Canada); R v Sparrow [1990] 1 SCR 1075 (Supreme Court of Canada); Delgamuukw v British Columbia [1997] 3 SCR 1010 (Supreme Court of Canada).
• [9] [2002] 2 CNLR 212.
• [10] Jamie Dickson, The honour and dishonour of the Crown: making sense of Aboriginal law in Canada (Purich Publishing Limited, 2015).
• [11] Coral Dow and John Gardiner-Garden, ‘Indigenous Affairs in Australia, New Zealand, Canada, United States of America, Norway and Sweden’ Australian Parliamentary Library Social Policy Group Background Paper 15, 1997-98 (Commonwealth of Australia, 1998).
• [12] Jason De Santolo, ‘Responses to the ‘Sealord Deal’ – Fishing for Insights’ (2004) 4 Journal of Indigenous Policy  49, 52.
• [13] Sarah Levi, ‘Claims Conference To Increase Holocaust Survivor Funding By $87 Million’, The Australian, 10 July, 2018.
• [14] ABC, ‘Germany to compensate people who fled from country as children to escape Nazis’(ABC online, 17 December 2018).
• [15] Anshel Pfeffer and Shahar Ilan, ‘Speaking in German, Merkel Gets Standing Ovation in Knesset’ Haaretz (English edition, Jerusalem) 19 March, 2008.
• [16]  Foley, above n 2.
• [17] Ibid.
• [18] Ibid.
• [19] Prue Vines, ‘Apologising to Avoid Liability: Cynical Civility or Practical Morality?’ (2005) 27 (3) Sydney Law Rev. 483, 485.
• [20] Chiara Lawry, ‘Moving Beyond The Apology: Achieving Full And Effective Reparations For The Stolen Generations’ (2010) 14(2) AlndigLR 83.
• [21] Department of Defense Appropriations Act 2010 (USA) s 8113 (2)(b).
• [22] International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ 53^rd sess, (23 April-1 June and 2 July-10 August  2001) Supplement No. 10 (UN Doc A/56/10).
• [23] George Barrie, ‘Accepting state responsibility by means of an ‘apology’: the Australian and South African experience’ (2013) 46 (1) Comparative and International Law Journal of Southern Africa, 52.
• [24] Ibid.
• [25] Australian National Council on Drugs, ‘An economic analysis for Aboriginal and Torres Strait Islander offenders: Prison v Residential Treatment, ‘ (Australian National Council on Drugs, 2013)   <http://www2.deloitte.com/content/dam/Deloitte/au/Documents/finance/deloitte-au-fas-prison-vs-residential-treatment-240914.pdf>, viii.
• [26] Ibid.
• [27] Robert Tumeth, ‘Is Circle Sentencing in the NSW Criminal Justice System a Failure?’ Aboriginal Legal Service (NSW/ACT), 7 June 2011.
• [28] Chief Magistrate Hilary Hannam, ‘AIJA Indigenous Justice Conference Current issues in Delivering Indigenous Justice: Challenges for the Courts’,  Adelaide, 18-19 July, 2013.
• [29] Thalia Anthony, ‘Two Laws: Indigenous Justice Mechanisms in Context’ (2015) 18 (1) Journal of Australian Indigenous Issues 99, 110-1.
• [30] Elena Marchetti and Thalia Anthony, ‘Sentencing Indigenous Offenders in Canada, Australia, and New Zealand’, [2016] University of Technology Sydney Law Research Series 27.
• [31] Diversionary and alternative and/or dual cultural criminal sentencing and management methods.
• [32] Kathleen Daly and Elena Marchetti, ‘Innovative Justice Processes: Restorative Justice, Indigenous Justice, and Therapeutic Jurisprudence’ in Marinella Marmo, Willem de Lint, and Darren Palmer (eds.), ‘Crime and Justice: A Guide to Criminology’ (Lawbook Co, 4^th edition, 2012) 9.
• [33] Australian National Council on Drugs, above n 25.
• [34] This is foreshadowed by the National Indigenous Reform Agreement, part of the Intergovernmental Agreement on Federal Financial Relations between the Commonwealth, the States and the Territories. <http://www.federalfinancialrelations.gov.au/content/npa/health/_archive/indigenous-reform/national-agreement_sept_12.pdf> [7].
• [35] Tara McGee, Rebecca Wickes, Jonathan Corcoran, William Bor & Jake Najman, ‘Antisocial behaviour: An examination of individual, family, and neighbourhood factors’, Trends & issues in crime and criminal justice, Research paper No. 410. (Australian Institute of Criminology, 2011).
• [36] John Braithwaite Bruce Chapman Cezary A. Kapuscinski, ‘Unemployment and Crime: Resolving the paradox’, Final report to the Criminology Research Council (Australian National University, 1992)
• [37] This Weatherburn and Lind call “economic stress” in Don Weatherburn and Bronwyn Lind, ‘Poverty, Parenting, Peers and Crime-Prone Neighbourhoods’, Trends & issues in crime and criminal justice, Research paper No. 85  (Australian Institute of Criminology, 1998); Diane Smith, ‘Redfern works : the policy and community challenges of an urban CDEP scheme’, CAEPR Discussion Paper No. 99, (Centre for Aboriginal Economic Policy Research, 1995).
• [38] National Indigenous Reform Agreement, above n 35.
• [39] Patrick Dodson,’ Launch of the Aboriginal and Torres Strait Islander Social Justice Commissioner’s: Social Justice and Native Title reports for 2001’ (Australian Human Rights Commission 2002).
• [40] David P. Barash, Introduction to Peace Studies (Wadsworth Publishing, California, 1991) 8-9.
• [41] Don Weatherburn, ‘Economic Adversity and Crime’,  Trends & issues in crime and criminal justice, Research paper No. 40 (Australian Institute of Criminology, 1992); Don Weatherburn and Bronwyn Lind Poverty, ‘Parenting, Peers and Crime-Prone Neighbourhoods’, Trends & issues in crime and criminal justice, Research paper No. 85 (Australian Institute of Criminology, 1998).
• [42] Shireen Morris Re-evaluating Mabo: the Case for Native Title Reform to Remove Discrimination and Promote Economic Opportunity (2012) 5 (3) Land, Rights, Laws: Issues Of Native Title 1.
• [43] Tsilhqot’in Nation v British Columbia [2014] SCC 44.
• [44] Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (13 March 2019) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
• [45] (1971) 17 FLR 141, 171.
• [46] Yanner v Eaton (1999) 201 CLR 351.
• [47] Jason De Santolo, ‘Responses to the ‘Sealord Deal’ – Fishing for Insights’ (2004) 4 Journal of Indigenous Policy  49, 62; Michael Dillon, Policy Implications Of The Timber Creek Decision, Centre for Aboriginal Economic Policy Research ANU College of Arts & Social Sciences CAEPR Working Paper 128/2019.