the international journal of transitional justice
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
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
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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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Dow
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)
International Journal of Transitional Justice 2014 1ndash23
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
International Journal of Transitional Justice 2014 1ndash23
Rethinking Transitional Justice Redressing Indigenous Harm 5
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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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ber 3 2015httpijtjoxfordjournalsorg
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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
Rethinking Transitional Justice Redressing Indigenous Harm 7
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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
International Journal of Transitional Justice 2014 1ndash23
Rethinking Transitional Justice Redressing Indigenous Harm 9
by guest on Novem
ber 3 2015httpijtjoxfordjournalsorg
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
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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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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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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
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
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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
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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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ber 3 2015httpijtjoxfordjournalsorg
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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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ber 3 2015httpijtjoxfordjournalsorg
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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
International Journal of Transitional Justice 2014 1ndash23
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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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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
International Journal of Transitional Justice 2014 1ndash23
Rethinking Transitional Justice Redressing Indigenous Harm 9
by guest on Novem
ber 3 2015httpijtjoxfordjournalsorg
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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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
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)
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
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
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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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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
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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
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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)
International Journal of Transitional Justice 2014 1ndash23
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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
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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
International Journal of Transitional Justice 2014 1ndash23
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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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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
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
International Journal of Transitional Justice 2014 1ndash23
Rethinking Transitional Justice Redressing Indigenous Harm 9
by guest on Novem
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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)
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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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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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
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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
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
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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
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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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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
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
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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
by guest on Novem
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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
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)
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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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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ber 3 2015httpijtjoxfordjournalsorg
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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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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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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
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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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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
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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
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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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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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nloaded from
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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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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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
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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
by guest on Novem
ber 3 2015httpijtjoxfordjournalsorg
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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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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
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)
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
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
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
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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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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
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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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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
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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)
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
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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)
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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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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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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
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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
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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)
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
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)
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
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
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
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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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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
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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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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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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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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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nloaded from
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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Dow
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
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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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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
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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
International Journal of Transitional Justice 2014 1ndash23
Rethinking Transitional Justice Redressing Indigenous Harm 11
by guest on Novem
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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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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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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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ber 3 2015httpijtjoxfordjournalsorg
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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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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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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
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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)
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
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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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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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
Rethinking Transitional Justice Redressing Indigenous Harm 19
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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
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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
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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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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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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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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
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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
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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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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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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
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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
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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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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
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
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
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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
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ber 3 2015httpijtjoxfordjournalsorg
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nloaded from
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
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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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
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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
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
by guest on Novem
ber 3 2015httpijtjoxfordjournalsorg
Dow
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
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
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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
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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
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
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
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
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
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
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
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
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