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Settler-Colonial Violence, Human Rights and the Contest for Land

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DOI: 10.13140/RG.2.2.16171.69924

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 Settler-Colonial Violence, Human Rights and the Contest for Land

Shelly McGrath

Associate Lecturer

Wollotuka Institute of Indigenous Education and Research

University of Newcastle

ABSTRACT

Concurrent to the proliferation of violence in contemporary settler-states is the

increasing number of human rights abuses suffered by Indigenous peoples in these settings,

particularly in terms of self-determination, access to justice and economic marginalisation. To

address these complex concerns, this paper uses a case study approach to examine the ethical

challenges of how ongoing structural violence and human rights abuses impact on the socio-

political location of Indigenous peoples in settler-states. It emerges that structural violence is

intrinsic in the very fabric of every day Australian life for Indigenous peoples, and particularly so

for those in contact with the criminal justice system. It is also argued that the dominant

positioning of settler-states is in fact reinforced by the very international law mechanisms

designed to protect the rights of Indigenous minorities. Using the case of the Northern Territory

Emergency Response, or ‘Intervention’ to examine these themes, the overarching settler-

colonial logic of Indigenous elimination becomes evident within virtually very aspect of

contemporary Australian socio-political and economic relations between the coloniser and

colonised.

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Settler-colonial Violence

Despite advances in international law and the widespread adoption of universal human

rights standards, including instruments that recognise the inherent rights belonging to

Indigenous peoples, Australia remains one of the last British, settler-colonial outposts that

consistently denies the sovereignty of Aboriginal and Torres Strait Islander peoples. Settler

refusal to acknowledge that Indigenous sovereignty in Australia was never ceded and that the

state’s claims to independence are therefore illegitimate, has deep implications in terms of land

ownership. In international law, sovereignty is recognised ‘as inextricably tied to territory,’

therefore, the denial of First Nations rightful sovereignty is critical to reinforcing the legitimacy

of settler-states, where control over territory is intrinsic to governmental authority (Cunneen,

2011:315). As Maddison points out, ‘the structures, and structural violence, of settler

colonialism continue to dominate the lived experiences of Indigenous populations’ (2013:289).

Pinpointing violence as a fundamental characteristic of forming nations, the very

concept of a ‘state’ can be defined as a ‘human community that (successfully) claims the

monopoly of the legitimate use of violence within a given territory’ (Weber, 1921:29).

This chapter examines the modes of violence specific to settler-colonial states, including

the primary ‘founding’ or ‘originary’ violence that occurs with colonial invasion (Derrida 1989;

Watson 2009) and the subsequent forms of structural violence on which the regime is

sustained.

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 According to Wolfe, setter claims to sovereignty necessitate ‘the elimination of the

owners of that territory, but certainly not in any particular way’ (2006:402). It is argued here

that eliminatory logic is executed through both the denial of founding colonial violence and the

legitimisation of ongoing structural violence by the state where, viewed collectively, a specific

brand of settler-colonial violence emerges. Settler-colonial violence is embodied within every

day structures and institutions, exemplified by the criminal justice system where profound state

violence is justified under the guise of maintaining ‘law and order’. Morgensen argues that

these processes of contemporary elimination and the attempted amalgamation of Indigenous

peoples into the settler-colonial formation is ‘exemplary of biopower’ (2011:53). The deeply

historical origins of settler-colonial relations and the naturalisation of power inequalities

renders the inherent biopower of settler-colonialism invisible, making the inequitable

conditions suffered by First Nations seem contextually acceptable. The normalisation violence is

critical to the success of settler-colonialism, where ‘normal’ equates to assimilationist values

that denote conformity to the dominant culture (Watson 2009).

Within settler-states, white, colonialist ‘norms’ prescribe moralities, and ‘to be outside

the moral community is to be susceptible to the violence of the state’ (Cunneen, 2011:32).

Assigning an inherent lack of morality and innate criminality to Indigenous peoples is an old

tactic used by colonisers, where racialised discourses and the use of zoological terms like

‘primitive’ and ‘savage’, have effectively dehumanised the ‘native’ (Fanon 1990). The

exclusionary and violent treatment of Aboriginal peoples in Australia has become so normalised

that within the settler psyche, violence towards Indigenous peoples is seen as virtually

unavoidable or inevitable. Aboriginal violence as ‘a wicked problem’ supports the ongoing

3
success of colonial projects, where the violent invasions of Aboriginal lands or the profoundly

disproportionate rates of Aboriginal children in detention are not seen as ideologically

problematic by the non-Indigenous, settler society (Tauri 2014).

Originary/Founding Violence

Settler societies are, by definition, centered around the territorialisation of colonial

invaders and are thus paralleled ‘on the traumatic, that is, violent replacement and or

displacement of Indigenous others’ (Veracini, 2008:364). First contact is inevitably one marked

by conflict and hostility, where armed settlers invade with brute force and ‘the question of

genocide is never far’ (Wolfe, 2006:387). This initial period of ‘founding’ violence marks the

beginning of a relationship where the invading settlers and the dispossessed Indigenous

peoples are fundamentally and diametrically opposed (Veracini 2008; Watson 2009). The

founding violence of ‘settlement’ in Australia caused the devastation of Indigenous cultural,

political and social systems and as such is recognised as a root cause of widespread

transgenerational trauma and dysfunction (Healing Foundation & White Ribbon, 2017:7).

However, this is a fact that is largely denied in the political sphere and by the wider Australian

public, where acknowledging the pervasive extent of founding violence committed against

Indigenous peoples would be to disrupt the national preference for a history of passive

settlement, and further suggest that there is an outstanding moral debt to First Nations yet to

be paid.

Violence in Australia continues to be sustained by a ‘repertoire of strategies’, including

through the existence of law and governmental bodies; the military and the police; and the

4
penal system, which operates as a spatial sequestration mechanism to deal with the ‘native

surplus’ (Foucault 1977; Wolfe 2006:404). Common to most settler-colonial formations, these

manifestations of state violence are often invisible and, operating on manifold levels, are built

on the damage inflicted by originary violence. According to The Healing Foundation & White

Ribbon Australia, recognising historical conflicts and the ‘subsequent destruction of social and

relationship structures’ of Indigenous groups helps to contextualise the contemporary socio-

political tensions existing between settlers and First Nations (2017:6). Conversely, the

disavowal of colonial violence allows for the ‘erasure or distortion of history’

that enables the ‘process of desocialisation necessary for the emergence of hegemonic

accounts of what happened and why’ (Farmer, 2004:308). For example, the disavowal of

frontier wars in Australia serves to deny founding violence, and the construction of Indigenous

cultures as inferior and savage supports settler discourses that normalises the punitive

treatment of First Nations peoples. It is from this hegemonic positioning that the Australian

government ‘retains a vested interest in keeping violence going’, where reproducing the

‘inequalities and inequities’ of violent dispossession perpetuates the dominance of the state

(Watson, 2009:46).

Structural Violence of the State

In making a ‘basic distinction between violence that works on the body, and violence

that works on the soul’ Galtung posits that manifest violence is observable and therefore

tangible, while latent violence is harder to identify as ‘something which is not there yet might

easily come about’ (1990:169-172). Whereas manifest violence is an immediately personal or

5
direct attack, structural or indirect violence as a form of latent violence occurs ‘where there is

no such actor’ (Galtung 1969:170). Following Galtung, Farmer (2004:317) posits that social

injustices lie at the heart of structural violence, while Lee highlights that as ‘a product of human

decisions’ structural violence is therefore ‘correctable and preventable through human agency’

(2016:109). The critical role of agency where harm is avoidable yet inflicted all the same

renders structural violence as distinguishable from other types of social inequalities, making it a

fundamentally violent phenomenon. According to Lee, as ‘the most potent cause of other forms

of violence’ structural violence is also the most lethal form of violence (2016:109). In Australia,

structural violence towards First Nations is recognised not as an inadvertent, accidental

outcome of colonialism but rather a persistently destructive, systematic attack directly resulting

from settler policies intended to eliminate the native (Healing Foundation & White Ribbon

Australia, 2018:7).

According to Wolfe, violence is not just an inadvertent byproduct of political conflict but

is rather key to the success of the colonial state, and ‘murderous activities… constitute its

principle means of expansion’ (2006:392). The application of violence has facilitated the

colonial expansion of Australia, however, drawing on the imagined moral supremacy of the

settler consciousness, reenactments of colonial violence are restructured as ‘humanitarian’ acts

required to ‘save’ innately violent Aboriginal peoples from themselves (Watson, 2009:46). With

the motives of the colonial project obscured behind layers of political subterfuge, violence as a

fundamental characteristic of Indigenous cultures and peoples is now a taken-for-granted,

‘normalised’ part of Australian society (Watson, 2009:46). Yet as a settler-society in a state of

imperfect sovereignty, the conflicts surrounding racialised violence in Australia is in fact

6
symptomatic of the ongoing struggles over governmental legitimacy and of course, the contest

for land.

Unsettled Settlers & the Contest for Land

‘Whatever settlers may say… the primary motivation for elimination is not race…but

access to territory. Territoriality is settler-colonialism’s specific, irreducible element’

(Wolfe, 2006:388).

Ultimately, the primary goal of the colonial project is to justify the ongoing occupation and

exploitation of Indigenous lands, an ambition made possible by reinforcing the inequitable

hierarchies that privilege the settler and reproduce the colonised as manageable objects within

the state (Watson, 2016:33). Other than the outright physical elimination and violent fracturing

of kinship systems, one of the most effective techniques of social and political management is

through the forced disconnection to lands that lie at the heart of Indigenous life systems

(Strakosch & Macoun 2012). Through state technologies, these techniques of spatial

sequestration have the capacity to simultaneously contain and dispossess Indigenous peoples

in their own lands.

Settler-colonial societies are premised on a ‘logic of elimination’ where the invading

settler population aims to transplant themselves as the new indigene, an objective made

possible only by the concurrent ‘elimination of native societies’ (Wolfe, 1999:2) Given that First

Nations in Australia have never ceded sovereignty and that the colonial state continues to avoid

treaty negotiations, placing the issue of territoriality at the center of the analytical framework

7
used to interrogate complex settler-colonial relations is essential. The strategic demonisation of

Indigenous peoples and their cultures is used to influence other areas of governance, and the

‘emergency’ Intervention into remote Aboriginal communities in the Northern Territory can be

understood as ‘a contemporary expression of this governing modality’ (Anthony, 2015:51).

After eleven years of ‘waging war on Indigenous self-determination’ through a range of

destabilisation tactics that included abolishing the Aboriginal and Torres Strait Islander

Commission (ATSIC) in 2004, the Howard government spuriously misappropriated the Ampe

Akelyernemane Meke Mekarle, ‘Little Children are Sacred’ report, using it as a ‘Trojan horse’ to

justify an otherwise illegitimate Intervention (Turner & Watson, 2007:205). Seizing on the

sensationalised allegations of widespread child sexual abuse in the Northern Territory, on 21

June 2007 Howard declared a ‘national emergency’, signaling the beginning of a coordinated,

militaristic attack and one of the most blatantly racist campaigns against Aboriginal peoples in

recent history (Hinkson, 2007:2). Requiring $587 million, three new Bills and suspension of the

Racial Discrimination Act to avoid incrimination over the unlawful measures, the Northern

Territory Emergency Response (NTER) served to authorise the hostile takeover of seventy-three

remote Aboriginal communities (Watson, 2009:46). Under the ‘radical, comprehensive and

highly interventionist’ response (John Howard quoted in Hinkson, 2007:6), amendments to the

Aboriginal Land Rights (Northern Territory) Act 1976, legitimised the acquisition of Aboriginal

land and effectively brought the ‘prescribed townships’ under the control of assigned

government representatives (Hinkson, 2007:3). With the decision to act made, there was little

chance to respond to the extreme measure proposed. Despite 154 submissions being made in

just 48 hours expressing concern around the sudden legislation, all three Northern Territory

8
Emergency Response Act Bills were passed on the same day they were tabled. A significant

number of the concerns raised related to the forced acquisition of Aboriginal lands through

compulsory land leases and the abolishment of access permits. Objecting to what was clearly

discrimination against First Nations peoples, Senator Rachel Siewert argued that ‘we do not

believe that taking land away from people and taking away their permits and being

discriminatory in welfare reform will lead to the advancement of Aboriginal people’ (quoted in

Johns, 2007:330). In response, Nigel Scullion freely admitted that the laws

simply discriminate in a way that treats one class of people from another [and] if we do

not exempt some of these areas from the Racial Discrimination Act, they will be

unlawful and they will not be able to proceed… [that] does not suit our purpose

As specific details of the proposed Bills and the potentially objectionable motives underpinning

the government’s actions emerged, opposition to Howard and Brough’s obvious

misappropriation of the ‘Little Children are Sacred’ report grew. Pat Anderson, co-author of the

Report, expressed disbelief and anger that none of the recommendations had even been

acknowledged and called the Intervention a ‘massive betrayal’ that had left her ‘at an absolute

loss of what to do’ (The Age, 17 August 2007, para.1-2). Voices within the Government likewise

highlighted the discord between the recommendations of the report and the proposed land

seizures, with The Hon. Clare Martin stating that ‘these measures were not mentioned in the

Anderson Wild Report and clearly have nothing to do with child abuse’ (Media Release, 6

August 2007). The ‘sweeping assumption of power’, (Howard quoted in Johns, 2007:332) of the

newly introduced laws effectively saw a return to the mission days, with a massive increase in

police and military and the appointment of government ‘managers’ empowered to oversee all

9
local Aboriginal councils and organisations within NT communities (Hinkson, 2007:3). Granted

unmitigated authority, the supervisors were empowered to eject anyone- including traditional

owners- from compulsorily leased land, violating the inherent rights of the lawful Aboriginal

titleholders. Residents of town camps around Alice Springs gathered in protest and expressed

their ‘humiliation, incomprehension, confusion, anxiety and a sense of betrayal and disbelief’ at

what they considered to be an ‘affront to Aboriginal peoples’ right to freedom and dignity…

exemplified by… a regression to a protectionist and paternalistic era’ (Anthony, 2015:196). In

using the military to carry out the imposed governmental orders, the treatment of Indigenous

communities as criminal was clear, and in what was a ‘further sign of Aboriginal removal from

civil society’, the enforced quarantining of welfare payments was applied only to Indigenous

citizens, reenacting the protectionist policies of the early 20th century (Cunneen et al.,

2013:109). This continuing manufacturing of poverty, which first began with Indigenous

dispossession and exclusion from economic participation, has been identified as one of the key

factors in the marginalisation that underpins poor health, low education and high rates of

violence in remote Indigenous communities (Cunneen & Tauri, 2016:5). Cunneen & Tauri argue

that the ‘impoverishment and immiseration (the forcible imposition and maintenance of

structural conditions of extreme poverty) of Indigenous people did not simply “fall from the

sky”, and the contemporary policies of the Intervention continue to reproduce these conditions

(2016:5).

Despite vehement opposition to the blatantly discriminatory policies that ‘had nothing

to do with the safety of women and children,’ the voices of NT communities and their

supporters were ignored (Watson, 2016:33). Deploying deep-seeded, historical racisms and

10
structurally violent processes of criminalisation, the Australian state enacted a range of

negative stereotypes to portray ‘Aboriginal peoples as largely incapable of governing their own

lives… [and] Indigenous cultural practices as the demon to be cast out’ (Bielefeld, 2014:2). The

Little Children are Sacred report used to justify the Intervention was quickly dismissed, with the

authors publicly denouncing the actions and stating that ‘there is not a single action that the

Commonwealth has taken so far that has corresponded with a single recommendation… there

is no relationship between all these emergency powers and what is in our Report’ (Anderson &

Wild quoted in Murdoch, 2007, para. 9). Indeed, almost unbelievably, in the 480 pages of the

NTER legislation instruments that purported to be responding to a child abuse ‘national

emergency’, neither term ‘children’ or ‘sexual abuse’ even appears once (Anthony, 2015:109).

What also went unpublicised was that of the 7433 invasive and traumatising health checks

carried out by contracted medical staff on Aboriginal children, only 39 were flagged to

authorities as being possible abuse cases, with a total of just four cases referred on as abuse

(Collingwood-Whittick, 2012:111). Much later, the Australian Crime Commission; a joint

taskforce comprised of Family and Community Services and NT Police; as well as the original

report’s authors Wild & Anderson, all announced that there was no evidence to support the

sensational allegations made by Howard and Brough (Anthony, 2015:109). By then, the damage

was done, with the morally outraged Australian public convinced that whatever happened

under the Intervention, it must be better than the depraved scenes of violence that had been

conjured up by the key players and the mainstream media. For Fanon, these tactics are typical

of the combat between settler and native, where ‘the colonial regime owes its legitimacy to

force and at no time tries to hide this aspect of things’ (1990:66).

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 The moral panic stemming from the lurid allegations of rampant child sexual abuse was,

in fact, a smokescreen to detract from ‘a highly-opportunistic land-management agenda’ the

federal government had been working on for some time (Watson, 2016:33). For people on the

ground fighting against the mining interests of the Australian governments and foreign

conglomerates, the attack on the Northern Territory Aboriginal communities was unsurprising.

At the time, scientist Helen Caldicott was quoted as saying, ‘the land grab of Aboriginal tribal

land has nothing to do with child sexual abuse… but all to do with open slather uranium mining

and converting the Northern Territory to a global nuclear dump’ (quoted in Pilger, 2008,

para.15). With around 40% of the world’s uranium deposited in Australia, large quantities of it

is located on Aboriginal land in the NT. Prior to the Intervention, the construction of the new

railway line connecting Adelaide to Darwin, conveniently running parallel to Olympic Dam, the

world’s largest uranium mine, was subsidised by a consortium of international investors. With

the rail line providing direct access to major shipping ports on the coast of the NT, the hugely

lucrative deals with the investors, including US mining giant Halliburton and John Howard's

"mate", Dick Cheney, faced just one problem (Pilger, 2008: para. 16). The NT is home to

Australia’s only ‘federal Aboriginal lands rights regime’, and the project depended on

Aboriginal-owned and controlled land (Watson, 2009:46). The timely announcement of the

Intervention successfully diverted public attention from the mining deals and strategically

allowed the government to reverse collective ownership of Aboriginal land, dissolving the land

rights that impinged on the uranium deals. Deploying Aboriginal culture in a way that

‘positioned the moral hegemony of the state and its non-Aboriginal citizens’, the moral panic

around child abuse was used to justify a range of actions that fundamentally breached the

12
rights of Indigenous peoples (Watson, 2016:33). The Intervention did, however, achieve the

government’s aims. In the months following the NTER legislation that effectively saw Aboriginal

land rights in government ‘prescribed areas’ abolished, Australia signed huge uranium deals

with China and Russia and the mining of Aboriginal lands commenced (Collingwood-Whittick,

2012:112).

These events provide some insight into the political motivations of the Australian

government and point to one of the primary factors underpinning the diametrical positioning of

Indigenous peoples and colonisers in present day settler-colonial settings. As summarised by

Wolfe, ‘land is life-or at least, land is necessary for life. Thus, contests for land can be, indeed,

often are, contests for life’ (2006:387). For the Indigenous peoples of Australia, whose life

systems are organised through ancestors, land and Country (Brigg, 2007:404) inherent cultural,

political and social rights to these lands are recognised through international law instruments.

As such, the Intervention epitomises settler-colonial violence while also being representative of

the ongoing violation of Indigenous rights in Australia.

Human Rights, for Who?

According to Watson, international law bodies were created within Westernised

constructs and therefore continue to serve the colonial agenda, where mechanisms exist to

deny the rights of Indigenous nations even while advocating for them (2016:32). Despite being

a signatory to most of the major international human rights instruments, Australia has not

enshrined any of these rights in statute, essentially subjecting the rights of First Nations to the

existing laws of the state. This means that any right to self-determination ‘is seen as a matter of

13
administrative and political discretion by non-indigenous government’ (Cunneen, 2011:313).

For Watson, this represents the transnational colonial agenda shared by Anglophone states,

where even the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

represents a ‘Eurocentric framework to re-inscribe the civilising mission and the colonial project

of assimilation’ (2016:33). This is echoed by Davis, who concedes that in operationalising the

core principles enshrined in the UNDRIP, particularly regarding the right to self-determination

and the right to participate in decision making processes, Australia ‘does not fare well’

(2015:59).

The right for all peoples to be self-determining is one of the foundational principles of

international laws under the United Nations, and is enshrined within multiple instruments,

including the UNDRIP, the Charter of Human Rights; the International Covenant on Civil and

Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights

(ICESCR). As the most comprehensive human rights instrument relating to Indigenous peoples

across the globe, the UNDRIP, or Declaration, sets out the ‘minimum standards for the survival,

dignity and well-being of the Indigenous peoples of the world’ (Article 43). The right to self

determination is also at the heart of the UNDRIP and is articulated by Articles 3, 4 and 5, which

recognise the collective rights of Indigenous peoples to: autonomy and self-governance; the

freedom to determine political status; and the ‘right to maintain and strengthen their distinct

political, legal, economic, social and cultural institutions’ (United Nations Declaration on the

Rights of Indigenous Peoples, [UNDRIP], 2007, p.4). Self-determination is widely recognised as

‘the most fundamental of all human rights’, where the central tenets of control and consent

give Indigenous peoples power over their own destiny, providing ‘a vehicle for re-imagining

14
their relationships with the countries within they live’ (Behrendt, Porter & Vivian, 2017:10).

However, as a highly complex concept, the right to self-determination is further

complicated ‘when its recognition is denied under a colonial regime’ (Victor, 2007:3). This has

been the case across settler-colonial settings, especially in Australia, where the concept of self

determination for Indigenous peoples is conflated with secessional intent and challenges to the

‘territorial integrity’ of the colonial state (Berendt et al., 2017:13). This deliberate equivocation

is not surprising from a country that initially rejected the UNDRIP when it was adopted by the

United Nations General Assembly in 2007. While 144 countries from across the world

unanimously signed the Declaration, the four major Anglophone states of Australia, Canada,

Aotearoa New Zealand and the United States stood united in their opposition. Voting as a bloc

against the Declaration to demonstrate their shared stance on Indigenous rights, the four

settler-states issued simultaneous public statements, primarily objecting to the provisions

made under rights around Indigenous self-determination and access to resources and land

(Lightfoot, 2012:103). For the four Anglophone states, the Declaration embodied the threat

that Indigenous nations as the rightful owners of invaded territories represent, while providing

a framework that could potentially challenge the legitimacy of existing state regimes. This was

made abundantly clear in the statement justifying the objection issued by Australia’s

ambassador to the UN, the Hon. Robert Hill, which said that Australia could ‘not support a

concept that could be construed as encouraging action that would impar, even in part, the

territorial and political integrity of a state with a system of democratic representative

government’ (2007). The statement was criticised for rejecting the core principles of the

UNDRIP, including the right of Indigenous peoples to self-determination and traditional lands,

15
and for denying the need for decolonisation processes to occur so these rights may be

achieved. Vocally opposing the very notion of Indigenous peoples having a legitimate claim to

resources and territory, Hill announced that since ‘any right to traditional lands must be subject

to national laws’ the rights enshrined by the Declaration would be ‘impossible to implement’

(Hill 2007). According to Hill, Article 10 of the Declaration would also be ‘unworkable’ at a

practical level (2007). Article 10, known also as ‘FPIC’, states that

Indigenous peoples shall not be forcibly removed from their lands or territories. No

relocation shall take place without the free, prior and informed consent of the

indigenous peoples concerned’ (United Nations Human Rights Office of the High

Commissioner [OHCHR], 2008:6).

Emphasising the need for the free, prior and informed consent of Indigenous peoples to

be obtained when decisions that are likely to impact them are being made, the second part of

Article 10 also articulates that there should be ‘agreement on just and fair compensation and,

where possible, the option of return’ of Indigenous peoples to traditional lands. This likewise

poses significant problems for settler-colonial governments, where policy-making around the

issue of stolen lands has ‘been anything but consensual and informed and has relied on simply

imposing white governance and control onto Indigenous communities in an unmediated

fashion’ (Blagg, 2016:2).

The similarities between Hill’s statement and those issued simultaneously by

representatives from Canada, New Zealand and the United States, points to the collective

anxiety shared by the governments of all four settler-states regarding their claims to sovereign

legitimacy over Indigenous lands (Lightfoot, 2012:102). Yet following intense domestic and

16
international pressure to recognise the rights of Indigenous peoples, over the next two years all

four countries reversed their decisions against the adoption of the UNDRIP, with Australia the

first to announce the backflip in April 2009. However, during the period from the rejection of

the UNDRIP to its eventual ‘support’ by the four settler-states, absolutely no changes to the

document were made, raising an important question- ‘what does the pattern of the

Anglosphere state endorsements of the Declaration tell us about the nuances of state

commitments to human rights norms?’ (Lightfoot, 2012:104).

Selective Endorsement and the Domestic Paradigm

In her statement to Parliament addressing the decision to shift Australia’s position to

one of ‘support’, then Minister for Indigenous Affairs, Jenny Macklin, also took the opportunity

to repeat the government’s exception to the core principles of the Declaration. Emphasising its

‘non-binding’ nature, Macklin also highlighted the ‘aspirational’ concept of Indigenous rights in

Australia, using the term a total of five times throughout her speech (3 April 2009). Singling out

the same issues addressed by Hill in his statement, Macklin reiterated that ‘Australia’s laws

concerning land rights and native title are not altered by our support of the Declaration’ and

that ‘the Declaration cannot be used to impair Australia’s territorial integrity or political unity’

(3 April 2009). Cynical commentators responded with suggestions that there were other

reasons for the government’s endorsement of the UNDRIP, including to gather support for

Australia’s bid for seat on the UN Security Council (Collingwood-Whittick, 2012:115).

Significantly, Larissa Behrendt pointed out that Australia had only endorsed the Declaration

when it was passed by the General Assembly, meaning any binding obligations as a permanent

17
signatory had been effectively bypassed (quoted in Collingwood-Whittick, 2012:114). Australia’s

strategic political activity throughout this period constitutes what Lightfoot has termed

‘selective endorsement’, where, by publicly proclaiming the importance of international human

rights and endorsing the aspects of the Declaration that align with existing laws and norms,

states are able to maintain their fundamental opposition to the rights that conflict with state

interests (2012:115). The same design of selective endorsement processes used by Australia

were likewise employed by Canada, New Zealand and the United States. By emphasising

ideological alignment with the UNDRIP in their statements of support, each country remained

safe knowing that the provisions made under the Declaration would be of no consequence once

they had been ‘interpreted within existing domestic laws and structures’ (Lightfoot, 2012:116).

This ability for states to selectively erode the standards of universal human rights frameworks

in localised settings highlights a system that is prepared to tolerate the dismissal of its core

principles while essentially reproducing hegemonic structures that support colonial domination.

For Watson, the UNDRIP epitomises the way in which international law mechanisms are

complicit in ongoing colonial projects designed to maintain control over Indigenous peoples and

their futures. Citing Article 46 of the UNDRIP, which states

Nothing in this Declaration may be interpreted as … authorising or encouraging any

action which would dismember or impair, totally or in part, the territorial integrity or

political unity of sovereign and independent States’ (OHCHR, 2008:14)

Watson argues that the Declaration served to re-inscribe the power of colonial laws over the

political and territorial legitimacy of First Nations laws (2016:32). Appeals for recognition of

Indigenous sovereign rights continue to fail ‘because international law has been created by

18
colonial nations and in the interests of colonialism itself’ (Watson, 2016:30). Liberating

international law from colonial confines is further complicated by the implementation issues

raised by Lightfoot. With First Nations peoples already contained by occupying settler-state

apparatuses, access to human rights and justice mechanisms are dependent on the existing

laws within that country’s ‘domestic paradigm’ (Watson, 2016:33).

In Australia, despite being party to the major human rights instruments advocated by

the UN, many rights are ‘not enshrined in statute’ instead falling under domestic laws overseen

by the Australian Human Rights Commission Act 1986 (Cth), ‘with only a select portion of rights

whose violation can trigger the complaint action that falls under the Commission’s purview’

(Davis, 2015:57). The scheduling of rights to Australia’s domestic paradigm translates to a

comparatively limited recognition of these rights, specifically for Indigenous peoples, who

suffer from ‘exceptionalism’ within Australia’s supposed ‘democratic governance’ (Veracini,

2011:58). This is owing to the circumstance that within settler-colonial settings, ‘the

independent polity is the settler polity’ and according to Veracini, the haphazard recognition of

Indigenous rights in Australia ‘has historically been used as a powerful weapon in the denial of

Indigenous entitlement and in the enactment of various forms of coercive assimilation’

(2011:6).

The Intervention & Access to Justice

‘We were told to gather… and all of a sudden we became aware around us of public

servants, the police and also- this is my recollection- and also the army. Some of the

people were armed, if it wasn’t armed they had batons… The shock- you could almost

19
 taste it and our hearts… our hearts were sinking and we didn’t quite know if we were

going to be shot or put into paddy wagons or whatever. And then the directives came

like shots from these rifles anyway and we were told that there was a new way

Aboriginal Affairs is going to be handled. And that was our introduction to the

Intervention. And I can tell you that it was horrific.’ (Rosalie Kunoth Monks, 2015:19).

One of the central recommendations underpinning the Little Children are Sacred report

was that Indigenous self-determination was critical for communities to find solutions to the

problems they were facing (Wild & Anderson, 2007). However, given the complete absence of

any free, prior or informed consent, ‘one of the most fundamental objections to the NTER

remains that Aboriginal people were not consulted on the Intervention’ (Davis, 2011:6). Again,

a complete discord between the purported reasons for the emergency response, the Report

and the actions of the government is evident. The Australian government’s denial of human

rights and the militaristic invasion of Aboriginal communities share a common trait- they are

both symptomatic of the ongoing struggles over sovereignty between First Nations and the

settler-state. Strakosch & Macoun point out that if the concept of sovereignty is equated with a

‘supreme and indivisible authority over all within a territory’, the refusal of Indigenous peoples

to surrender sovereign rights to the Australian government reveals a significant deficit in claims

to colonial sovereignty, exposing the settler project of national domination ‘as incomplete’

(2012:46).

However, with Aboriginal peoples constructed as an inherently criminal underclass,

demands for sovereign rights are divorced from issues underlying community disorder, and

20
Indigenous resistance is reproduced as an antisocial dysfunction that requires state

intervention. In fact, the Little Children are Sacred report emerged after decades of Indigenous

communities appealing to government agencies for support and resources to help address the

extreme levels of poverty and violence they were experiencing, primarily due to a lack of

funding, infrastructure and community empowerment. In calling for the report, Aboriginal

activists including Jackie Huggins, Judy Atkinson and Mick Dodson were drawing attention to a

problem which they believed could be addressed by ‘significant investment in a multiplicity of

strategies underpinned by dialogue with Indigenous communities’, guided by the core

principles of the UNDRIP, particularly the free, prior and informed consent enshrined in Article

10 (Blagg, 2016:2). Instead, the government actions under the Intervention constituted an

‘outright disavowal’ of the core principles of human rights instruments, with research indicating

a staggering thirty articles had been breached under the Universal Declaration of Human

Rights, with another twenty-five articles of the UNDRIP further contravened during the

implementation of the Intervention’s initial stages (Collingwood-Whittick, 2012:114). The

political implications of these violations cannot be underestimated, nor the likelihood that ‘the

violence deployed in these contexts was strategic, planned and purposeful’ (Tauri 2014: 30).

For states to correspond with self-determination rights, Indigenous peoples must have

access to justice, both externally through satisfactory state mechanisms, and internally, where

customary and traditional systems are recognised as legitimate (Expert Mechanism on the

Rights of Indigenous Peoples [EMRIP], 2013:3). But according to Watson, the Australian state

‘has never in its history of relations with Aboriginal peoples handed over self-determination or

given recognition to any special rights that could be deemed self-determining’ (2005:25). The

21
Human Rights Council’s Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) states

that, as a central tenet of self-determination, the right to freely access justice is of ‘particular

importance’ and cannot be separated from other human rights issues, including structural

discrimination and lack of recognition of cultural and land rights (2013:3). However, with

Indigenous rights to self-determination effectively extinguished by the laws of Australia’s

domestic paradigm, Aboriginal communities under the Intervention had little recourse for

action against a colonial state intent on exercising complete authority over disempowered

minority groups. As Kunoth-Monks observed, ‘the fact that the Racial Discrimination Act was

removed alone shows me that the way the government went about in the last Intervention is

that they felt that had absolute control over us’ (2015:22).

In marking the fifth-year anniversary of ‘one of the darkest days in Australia's political

history’, Stop the Intervention Collective Sydney (STICS) spokesperson, Paddy Gibson

highlighted the devastating fact that when the Intervention was announced in 2007, Aboriginal

leaders and community members across the NT had predicted the ‘dramatic deterioration in

conditions’ ahead (2012, para.4). Among the ‘horror statistics’ detailed by government reports

assessing key health and justice indicators in the ‘prescribed areas’ five years into the

Intervention, it was revealed that under the NTER there had been: shocking increases in

incarceration; more unemployment; an acute self-harm crisis; rising domestic violence

incidents; less children in school and being taken away from their families; and more children

submitted to hospital for malnutrition (Gibson, 2012, para.5). While more than $1 billion of

funding had been invested in damaging, discriminatory policies including the punishing income

management scheme, no substantial financial support was allocated for community-owned,

22
Indigenous-led solutions. At every stage of the NTER, the self-determination rights of

Indigenous Australians were absolutely disregarded, particularly so in terms of FPIC, signaling

the ‘winding back of the few inherent Indigenous rights that exist in the Australian legal system,

despite absolutely no evidence of a causal link between those rights and child sex abuse’ (Davis,

2007:97). What was evident, according to Hinkson, was that in line with Brough’s plan to

stabilise, normalise and exit Indigenous communities, the denigration of Aboriginal peoples was

tied to assimilationist ideologies aimed at erasing Aboriginal cultural and political difference

(2007:6). The assimilation of Indigenous peoples into the neoliberal, capitalist norms of

‘Australian’ society serves to ‘normalise settler values and entrench colonial dominance’

(Strakosch & Macoun, 2012:60). Indeed, according to Collingwood-Whittick, the deployment of

troops and non-Indigenous government managers into remote Aboriginal communities ‘marked

the triumph of the anti-Indigenous-rights cohort in Australian’, publicly humiliating traditional

owners and withdrawing the power over ancestral lands that had only recently been recovered

(2012:130).

For Watson, the Intervention was an act of colonial violence that masqueraded ‘as being

beneficial to impoverished Aboriginal communities across the NT, but that once again boils

down to the legitimising of the right to invasion of Aboriginal lands and lives’ (2009:47).

Ultimately, the NTER epitomises the incredibly detrimental impacts of the punitive, top-down

policies favoured by neoliberal, settler governments that undermine the inherent rights

Indigenous communities under international law. Victor argues that while ‘self-determination

nurtures human dignity… colonial ideologies… are used to promote and sustain a colonial

regime that denies equally the colonised and the colonisers of their full human potential’

23
(2007:3). The destructive and demoralising policies and processes of the emergency response

have been useful in exposing the deeply-rooted conflicts at the heart of imperfect sovereignty

in this country. For Hinkson, it has provided ‘a unique opportunity to regenerate debate about

Indigenous disadvantage and cultural aspiration’, raising questions around ‘what kind of

country we want to bestow upon future generations’ (2009:11). For the author, this question

gave rise to more. Will the ongoing normalisation of settler-violence, gross violations of human

rights and extreme marginalisation of Indigenous peoples continue to be sanctioned by non

Indigenous citizens of Australia, or has the time come for the genuine recognition of the right to

political and cultural difference? Will ‘everyday’ Australians remain complicit in the structural

violence reproducing colonial institutions of white supremacy, or will there be a new moral

imperative, one where we realise that for as long as First Nations remain violated and

repressed, so do we?

24
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