International Journal of Transitional Justice, 2020, 0, 1–20

doi: 10.1093/ijtj/ijaa006
Article

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Settler Colonialism, Decolonization and
Radicalizing Transitional Justice
Augustine SJ Park*

A BS TR A C T
Although transitional justice has been mobilized to address violence perpetrated under
regimes of settler colonialism that are also established liberal democracies, this article
theorizes the inability of paradigmatic transitional justice to confront settler colonial-
ism. The liberal teleology of transitional justice risks working to realize the self-
supersessionist goal of replacing the colony with a ‘post-colonial’, settler/settled polity.
Drawing on Indigenous scholars, decolonization is explored through refusal, resur-
gence and prefiguration. The article advances a counterfactual proposition: If transi-
tional justice is radicalized it has the potential to contribute to decolonization through
decentring the state, inter-nationalizing the justice relation, challenging the legitimacy
of the settler regime and abandoning liberal teleology. The article argues for a decolo-
nizing acceptance of indeterminacy and uncertainty.
K E Y W O R D S : settler colonialism, decolonization, liberalism, Residential Schools,
Stolen Generations, Waitangi

Only recently has transitional justice been used as a framework to address injustice
perpetrated against Indigenous peoples under regimes of settler colonialism that are
also established liberal democracies,1 most notably Canada, Australia and New
Zealand. In Canada and Australia, transitional justice mechanisms have been used to
respond to state policies pertaining to Indigenous children that aimed to assimilate
Indigenous peoples through the mass removal of children from their families and
communities over several generations. Both Canada’s Indian Residential Schools
(mid-1800s to 1990s) and the care institutions in which Australia’s Stolen
Generations were placed (1890s to 1970s) were characterized by myriad forms of
abuse, maltreatment and neglect. Children were not permitted to speak their lan-
guages, engage in cultural practices or retain meaningful relationships to family or

* Associate Professor, Department of Sociology and Anthropology, Carleton University, Canada. Email: au-
gustine.park@carleton.ca
1 This paper does not address redress directed at non-Indigenous populations for state wrongdoing in settler
democracies (see, Stephen Winter, Transitional Justice in Established Democracies: A Political Theory
(Hampshire and New York, NY: Palgrave Macmillan, 2014).)

C The Author(s) (2020). Published by Oxford University Press. All rights reserved.
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2  A.S.J Park

community.2 In both countries, these policies have had lasting and deleterious impacts
on survivors, their families, communities and nations, including intergenerational trau-
mas, persistent social injustice, and cultural, economic and political inequalities.3

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Indeed, Australia’s Bringing Them Home report on the Stolen Generations describes
the practice of removing Indigenous children as genocide,4 while in Canada, residential
schools have been condemned as a form of cultural genocide.5 As a result of a negoti-
ated settlement, transitional justice in Canada included a Truth and Reconciliation
Commission, reparations schemes, healing funds and commemoration funds, which
were accompanied by an official apology. Transitional justice in Australia included a
National Inquiry, an official apology6 and a patchwork of reparations schemes by the
state governments of New South Wales, Victoria and South Australia.7 New Zealand’s
transitional justice practices respond to violations of the Treaty of Waitangi, the found-
ing document of New Zealand. In particular, the Waitangi Tribunal was established to
settle Maori land claims.8 While the New Zealand case is atypical in the sense that the
Tribunal is a standing body that adjudicates claims on an ongoing basis, the settle-
ments emerging from the Tribunal have been described as transitional justice.9
Accompanying the rise of transitional strategies in established liberal democratic
settler colonies (hereafter ‘settler democracies’) has been the burgeoning of a critical
body of research, a significant dimension of which has asserted the limitations of
transitional justice in answering violations perpetrated in the service of settler coloni-
alism.10 The present discussion advances debates in this area through offering a ser-
ies of theoretical lenses. The central argument I advance is that paradigmatic
transitional justice cannot contend with settler colonialism, and that transitional just-
ice as a framework can only be redeemed in the context of settler democracies

2 Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from
Their Families: Bringing Them Home (1997) [hereinafter ‘Report of the National Inquiry’], https://www.
humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf;
John S. Milloy, A National Crime: The Canadian Government and the Residential School System (Winnipeg:
University of Manitoba Press, 1999).
3 See, ‘Report of the National Inquiry,’ supra n 2 at ‘Chapter 11: The Effects’; Truth and Reconciliation
Commission of Canada, ‘The Legacy,’ in Honouring the Truth, Reconciling the Future: Summary of the
Final Report of the Truth and Reconcilation Commission of Canada (2015) [hereinafter ‘Summary of the
Final Report’], http://nctr.ca/assets/reports/Final%20Reports/Executive_Summary_English_Web.pdf
4 ‘Report of the National Inquiry,’ supra n 2 at ‘Chapter 13: Grounds for Reparation.’
5 ‘Summary of the Final Report,’ supra n 3.
6 Nicola Henry, ‘From Reconciliation to Transitional Justice: The Contours of Redress Politics in
Established Democracies,’ International Journal of Transitional Justice 9(2) (2015): 199–218.
7 Brook Boney, ‘Stolen Generations: Victims to Get $73 Million Compensation, NSW Government Says,’
ABC News, 2016, https://www.abc.net.au/news/2016-12-02/stolen-generations-to-get-$73-million-com
pensation-package-nsw/8086126 (accessed 1 June 2019).
8 See, Jacinta Ruru, ‘Constitutional Indigenous Treaty Jurisprudence in Aotearoa, New Zealand,’ in From
Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, ed.
Patrick Macklem and Douglas Sanderson (Toronto: University of Toronto Press, 2016), 415–448.
9 Richard Boast, ‘The Waitangi Tribunal and Transitional Justice,’ Human Rights Research Journal 4
(2006): 1–13.
10 Examples: Jennifer Balint, Julie Evans, and Nesam McMillan, ‘Rethinking Transitional Justice, Redressing
Indigenous Harm: A New Conceptual Approach,’ International Journal of Transitional Justice 8(2) (2014):
194–216; Jennifer Henderson and Pauline Wakeham, ‘Colonial Reckoning, National Reconciliation?:
Aboriginal Peoples and the Culture of Redress in Canada,’ ESC: English Studies in Canada 35(1) (2009):
1–26, https://doi.org/10.1353/esc.0.0168.
 Settler Colonialism, Decolonization and Radicalizing Transitional Justice  3

through a radicalization that contributes to decolonization. I build my analysis in sev-

eral parts: I provide a detailed theorization of settler colonialism, focusing on the
drive to ‘self-supersession’ – a totalizing rationality that aims to extinguish

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Indigenous futurity while asserting a post-colonial or ‘settled’ future. I, then, sketch a
paradigmatic concept of transitional justice as a heuristic device, centring on the lib-
eral teleology of transitional justice in order to theorize its limitations in confronting
settler colonialism. Specifically, zeroing in on teleology, I interrogate the ontological
stability of settler colonialism, and both the orientation to futurity and the liberal
telos that are common to settler colonialism and transitional justice. In order to ad-
dress the limitations of transitional justice in contending with settler colonialism, I
turn to Indigenous scholars to explore decolonization as refusal, resurgence and pre-
figuration. Using these three principles, I advance a counterfactual proposition: if
transitional justice were to be radicalized, it has the potential to contribute to decol-
onization. The radicalization I propose entails: decentring of the settler state, inter-
nationalization of the justice relationship, challenging the legitimacy of the settler
state, and abandoning liberal teleology. A radicalized transitional justice that contrib-
utes to decolonization, ultimately, requires settlers to accept indeterminacy, which
interrupts settler futurity and the perfection of the colonial project.
In exploring possible paths of decolonizing transitional justice, the purpose of this
paper is not prescription but to engage in dialogue. As a Canadian settler, I acknow-
ledge that I am an ‘[occupier] of Indigenous homelands’11 and one who both sus-
tains and benefits from settler colonialism. As a settler scholar, I strive to be attentive
to the historical and ongoing intermeshing of colonialism and western knowledge
production as explored by Maori scholar Linda Tuhiwai Smith.12 Thus, in this paper,
I recognize decolonization of scholarly fields to be a shared responsibility, but a pro-
ject in which settler scholars must follow the leadership of Indigenous scholars.13

S ET TLE R CO LO NI A L IS M A ND TH E L IM I TS OF T RA N SI TI ON A L
J US TI C E
Defining Settler Colonialism
Settler colonialism refers to ‘circumstances where colonizers “come to stay” and to
establish new political orders for themselves,’14 while insisting on ‘sovereignty over
all things in their new domain.’15 Most importantly, settler colonialism centres on
settler control over the land.16 While settler colonialism varies across time and space,

11 Lynne Davis et al., ‘Complicated Pathways: Settler Canadians Learning to Re/Frame Themselves and
Their Relationships with Indigenous Peoples,’ Settler Colonial Studies 7(4) (2017): 399, https://doi.org/
10.1080/2201473X.2016.1243086.
12 Linda Tuhiwai Smith, Decolonizing Methodologies: Research and Indigenous Peoples (London: Zed Books,
1999).
13 Elisabeth Carlson, ‘Anti-Colonial Methodologies and Practices for Settler Colonial Studies,’ Settler
Colonial Studies 7(4) (2017): 496–517, https://doi.org/10.1080/2201473X.2016.1241213.
14 Lorenzo Veracini, ‘“Settler Colonialism”: Career of a Concept,’ The Journal of Imperial and
Commonwealth History 41(2) (2013):313, https://doi.org/10.1080/03086534.2013.768099.
15 Eve Tuck and K. Wayne Yang, ‘Decolonization Is Not a Metaphor,’ Decolonization: Indigeneity, Education
& Society 1(1) (2012): 5.
16 Patrick Wolfe, ‘Settler Colonialism and the Elimination of the Native,’ Journal of Genocide Research 8(4)
(2006): 387–409, https://doi.org/10.1080/14623520601056240.
4  A.S.J Park

there is ‘a shared structural logic’17 that makes it possible to talk about settler coloni-
alism as a coherent phenomenon. John Collins outlines four logics of settler colonial-
ism: Elimination, expansion, exceptionalism, and denial.18

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Elimination may take myriad forms from outright massacre to ostensibly benign
forms of assimilation. This is because elimination does not require physical termin-
ation of Indigenous biological life but the disappearance of Indigeneity, i.e.,
Indigenous cultures, societies, identity etc. This was captured powerfully in ideolo-
gies in, for example, Canada to ensure ‘there is not a single Indian in Canada that
has not been absorbed into the body politic.’19 As Cree scholar, Harold Cardinal, put
it, ‘[t]he only good Indian is a non-Indian.’20 Elimination, according to Patrick
Wolfe, is the ‘organizing principle’ that structures settler colonialism as a project that
aims to build a new settler society on Indigenous territory.21 What this means, then,
is that eliminationism is never simply about destroying, but also about replacing. As
Wolfe puts it: ‘settler colonialism has both negative and positive dimensions:
Negatively, it strives for the dissolution of native societies. Positively, it erects a new
colonial society on the expropriated land base.’22 As Mi’kmaw scholar, Bonita
Lawrence, (writing with settler scholar Ena Dua) explains:
Settler states in the Americas are founded on, and maintained through, policies
of direct extermination, displacement, or assimilation. The premise of each is
to ensure that Indigenous peoples ultimately disappear as peoples, so that set-
tler nations can seamlessly take their place.23

Under settler colonialism, the disappearance of Indigenous peoples is essential to

settler claims to the land.24 Crow Creek Sioux writer, Elizabeth Cook-Lynn, explains
that elimination as mass murder ‘has been rationalized as the necessary acts of a na-
tion trying to be born,’25 while elimination as ‘complete assimilation. . . was always
[a] goal of the colonization of [I]ndigenous peoples on [the North American] con-
tinent. . . Meanwhile the title to vast Native lands. . . remains in the hands of the
colonizer.’26
The logic of elimination, thus, is a spatial logic imbricated with the logic of expan-
sion, where the frontier is ‘a moving structure that facilitates territorial acquisition.’27
The frontier remains an important ideological site in settler states like Canada,
Australia and the United States, where (to varying degrees and in different forms)

17 John Collins, Global Palestine (London: Hurst and Company, 2011), 31.
18 Ibid.
19 Sunera Thobani, Exalted Subjects: Studies in the Making of Race and Nation in Canada (Toronto:
University of Toronto Press, 2007), 119.
20 Harold Cardinal, The Unjust Society (Vancouver: Douglas and McIntyre, 1999), 1.
21 Wolfe, supra n 16 at 388.
22 Ibid., 388.
23 Bonita Lawrence and Enakshi Dua, ‘Decolonizing Antiracism,’ Social Justice 32(4) (2005): 123.
24 Aman Sium, Chandni Desai, and Eric Ritskes, ‘Towards the “Tangible Unknown”: Decolonization and
the Indigenous Future,’ Decolonization: Indigeneity, Education & Society 1(1) (2012): iii.
25 Elizabeth Cook-Lynn, A Separate Country: Postcoloniality and American Indian Nations (Lubbock, Texas:
Texas Tech University Press, 2012), 52.
26 Ibid., 12.
27 Collins, supra n 17 at 32.
 Settler Colonialism, Decolonization and Radicalizing Transitional Justice  5

heroic folklore of the frontier forms part of these states’ founding myths and continues
to frame discourses about Indigenous populations.28 Moreover, the frontier implies a
spatial arrangement of land seizure, which is the necessary precondition for the build-

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ing and sustaining of the new settler polity. Rather than a finished project, economic,
social, legal, gendered and racialized structures continue to ‘facilitate the dispossession of
Indigenous peoples of their lands and their self-determining authority.’29
If ‘[s]ettler colonialism destroys to replace,’ its goal is not only the destruction of
the native, but also of itself.30 Veracini explains that settler colonialism is in a perpet-
ual state of self-negation:
[S]uccessful settler colonies “tame” a variety of wildernesses, end up establish-
ing independent nations, effectively repress, co-opt, and extinguish
[I]ndigenous alterities. . . By the end of this trajectory, they claim to be no lon-
ger settler colonial (they are putatively “settled” and “postcolonial”. . .). Settler
colonialism thus covers its tracks and operates towards its self-supersession.31

Thus, settler colonialism strives to eliminate itself in order to perfect the settler
project. It is a teleological project with the end goal of replacing the (settler) colony
with a sovereign polity leaving no trace of the Indigeneity and coloniality that it suc-
ceeds. In this sense, the teleology of self-supersession is predicated on the ‘“logic of
elimination” [running] its course until it actually extinguishes the setter colonial rela-
tion.’32 In other words, successful elimination allows the settler colony to reach the
telos of a polity in which there ‘no Indian problem.’33
The logics of elimination and expansion are rooted in the colonial ideology of
‘progress’ – the steady and inevitable march towards an evolutionary apex of western
civilisation. The ideology of progress, in turn, is inflected with a logic of exceptional-
ism, which rationalizes, and renders essential, inevitable and heroic the self-
supersession of settler colonialism. As Collins explains, exceptionalism gives settler
colonialism its sense of purpose, mission, righteousness and, indeed, destiny. Settlers,
as ‘chosen people,’34 are charged with ‘a daring, necessary and even altruistic under-
taking.’35 At the same time, settler colonialism relies on denial of the ‘hidden struc-
tures of violence that extend into the present.’36 Collins borrows Cohen’s taxonomy
of denial.37 ‘Literal denial’ denies the ‘raw facts’ of atrocity or wrongdoing.

28 See, Julie Evans, ‘Where Lawlessness Is Law: The Settler-Colonial Frontier as a Legal Space of Violence,’
The Australian Feminist Law Journal 30(1) (2009): 3–22.
29 Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis:
University of Minnesota Press, 2014), 7 (emphasis in original); Leanne Betasamosake Simpson, As We
Have Always Done: Indigenous Freedom through Radical Resistance (Minneapolis: University of Minnesota
Press, 2017), 15.
30 Wolfe, supra n 16 at 388.
31 Lorenzo Veracini, ‘Introducing: Settler Colonial Studies,’ Settler Colonial Studies 1(1) (2011): 3.
32 Ibid., 7 (emphasis in original).
33 Thobani, supra n 19 at 119.
34 Collins, supra n 17 at 33
35 Ibid., 34.
36 Ibid., 35.
37 See, Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering (Cambridge and Malden:
Polity Press, 2001).
6  A.S.J Park

Interpretative denial invests the raw facts with different meanings. Implicatory denial
denies neither the facts nor their common meanings, but denies the moral, psycho-
logical or political implications that flow from the wrong. Cultural denial encourages

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social disregard or normalization of wrong. For Collins, all of these modes of denial
characterize settler colonies. Mississauga Nishnaag scholar and artist, Leanne
Simpson, captures the imbrication of exceptionalism and denial in Canada’s historical
narrative:

Mistakes were made. Land was lost. Children were stolen. Cultures were
adapted. Treaties didn’t work out. We [settlers] meant well. We tried our best.
Progress is inevitable, and while it is regretful you [Indigenous peoples] didn’t
have the intelligence or fortitude to be successful, that’s life. Maybe we’ll try
and be nicer and help more.38

Denial, in its myriad forms, is imperative to the invisibilization and trivialization

of elimination, but is also foundational to self-supersession: ‘The most basic form of
denial,’ writes Collins, ‘is that which enables members of the dominant culture in set-
tler societies to examine their surroundings and view no evidence of colonization.’39
Indeed, settler societies are founded on a disavowal of originary violence, the on-
going disavowal of Indigenous presence on the land and the disavowal of Indigenous
sovereignty,40 while asserting settler sovereignty. The imbrication of eliminationism,
expansionism, exceptionalism and denial, and their culmination in settler self-
supersession renders a picture of settler colonialism as a totalizing, perfectionistic
project that strives to extinguish Indigenous futurity and establish a settled future.
Importantly, settler colonialism is our ‘colonial present,’41 not a finished project
‘neatly located in the past.’42 Understanding settler colonialism through this theoret-
ical constellation raises questions about what it means to engage in transitional just-
ice in settler democracies. I turn, now, to a paradigmatic concept of transitional
justice as a heuristic device to guide an analysis of the limits of transitional justice in
the face of settler colonialism.

A Paradigmatic Concept of Transitional Justice

As a field, transitional justice is contested.43 Despite debate, an ‘orthodox transitional
justice paradigm’44 has persisted, which is fundamentally liberal and is a product of

38 Simpson, supra n 29 at 100

39 Collins, supra n 17 at 35.
40 Lorenzo Veracini, ‘Settler Collective, Founding Violence and Disavowal: The Settler Colonial Situation,’
Journal of Intercultural Studies 29(4) (2008): 363–379, https://doi.org/10.1080/07256860802372246.
41 Derek Gregory, The Colonial Present: Afghanistan, Palestine, Iraq (Malden, MA: Blackwell Pub., 2004).
42 Aimee Carrillo Rowe and Eve Tuck, ‘Settler Colonialism and Cultural Studies: Ongoing Settlement,
Cultural Production, and Resistance,’ Cultural Studies $ Critical Methodologies 17(1) (2016): 6, https://
doi.org/10.1177/1532708616653693.
43 Example, Christine Bell, ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or “Non-
Field,”’ International Journal of Transitional Justice 3(1) (2009): 5–27, https://doi.org/10.1093/ijtj/
ijn044.
44 Rosalind Shaw and Lars Waldorf, “Introduction: Localizing Transitional Justice,” in Localizing
Transitional Justice: Interventions and Priorities after Mass Violence, ed. Rosalind Shaw, Lars Waldorf, and
Pierre Hazan (Stanford: Stanford University Press, 2010), 3.
 Settler Colonialism, Decolonization and Radicalizing Transitional Justice  7

its liberal origins. The ‘heady wave of liberalization at the end of the twentieth cen-
tury,’45 notably in Latin America and Central and Eastern Europe, raised questions
of ‘[w]hat mechanisms need to be in place to address past human rights violations in

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order to transition to a democratic state?’46 While Teitel proposes a broad articula-
tion of transition as a ‘shift in political orders,’ she points out that ‘transition’ as a
term refers to shifting specifically to a liberal political order.47 Thus, paradigmatic
transitional justice posits the establishment of the liberal democratic successor re-
gime as its telos. However, the very taken-for-grantedness of the liberal ‘teleology’ of
transitional justice48 merits examination.
The focus on (political and economic) liberalization was not simply a neutral
and descriptive reflection of the fact of geopolitical changes at the end of the
Cold War and with the collapse of military regimes in Latin America. Rather, lib-
eralization was an ideological and normative project. Liberal dominance is cap-
tured in triumphalist discourses such as Fukuyama’s famous claim that with the
dissolution of communism at the end of the Cold War, liberalism emerged as the
apex of ideological evolution.49 Key political scientists, such as Huntington and
Schumpeter, working in the area of transition, operated with a normative ‘bias to-
ward Western-style democracies.’50 This was grounded in the liberal or democratic
peace thesis that assumes the pacific quality of liberalism. Indeed, the settler
democracies I interrogate in this article would paradigmatically serve as ‘aspira-
tions: stable states, with robust systems of governance, constitutions and no
declared wars on their territory.’51 However, the conflation of ‘transition’ with ‘lib-
eralization’ operates to foreclose and tacitly delegitimize other futures, while con-
tributing to claims of liberalism’s universal quality. Even the turn towards local or
customary forms of transitional justice in recent years has been premised on
adapting the local to supposedly transcendental liberal laws, norms and agendas.52
This is grounded in the construction of liberalism as simultaneously neutral (un-
marked by culture) and thus universalizable, and ‘good,’ which is a (non-neutral)
statement of value.53 Thus, paradigmatic transitional justice should be understood
as normative and ideological; yet, its value-orientation has been largely implicit –
an operational assumption that has, for the most part, evaded sustained, critical
interrogation. However, confronting settler colonialism requires suspending the
taken-for-granted assumption of liberalism as the goal for transitional justice.

45 Ruti G. Teitel, Transitional Justice (New York: Oxford University Press, 2000), vii.
46 Lauren Marie Balasco, ‘The Transitions of Transitional Justice: Mapping the Waves From Promise to
Practice,’ Journal of Human Rights 12(2) (2013): 200, https://doi.org/10.1080/14754835.2013.784858.
47 Teitel, supra n 45 at 5.
48 Shaw and Waldorf, supra n 44 at 4.
49 Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992).
50 Teitel, supra n 45 at 5.
51 Sophie Rigney, ‘The Hopes and Discontents of Indigenous-Settler Reconciliation,’ International Journal of
Transitional Justice 11(1) (2017): 360.
52 Shaw and Waldorf, supra n 44 at 5.
53 Augustine SJ Park, ‘Peacebuilding, the Rule of Law and the Problem Culture: Assimilation,
Multiculturalism, Deployment,’ Journal of Intervention and Statebuilding 4(4) (2010): 413–432, https://
doi.org/10.1080/17502971003700977.
8  A.S.J Park

The Limits of Paradigmatic Transitional Justice in Addressing Settler

Colonialism
Thus far, I have mapped a theoretical constellation of settler colonialism and

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sketched paradigmatic transitional justice as a heuristic. Building from these theoret-
ical underpinnings, I argue that the transitional justice paradigm cannot contend
with settler colonialism for at least three reasons that arise from the teleological
structure of transitional justice: (1) the ontological stability of the settler colony, (2)
the orientation to futurity shared between transitional justice and settler colonialism
and (3) the liberal telos of transitional justice.
First, transitional justice operates according to a teleological rationality in which a
state and society progress toward a known endpoint, premised on the assumption
that the repressive or violent state and society can be otherwise. In paradigmatic tran-
sitional contexts, the violence that is designated for transition is non-identical with
the state and society. While the state, its actors and members of society may be the
perpetrators, the ontology of the state and society is not interchangeable with the
ontology of the regime of violence that is selected for transitional attention. In con-
trast, settler colonialism as a regime of violence to which transitional justice
responds, is existentially indivisible from the state and from society. This point is bet-
ter conveyed with illustrations: One can conceive of a Poland that is not a totalitarian
regime or a Liberia that is not at war. In contrast, one cannot conceive of a Canada
or an Australia that are not settler colonies because these states are founded on- and
sustained by the fact of settlement (reflecting Wolfe’s observation that ‘invasion is a
structure, not an event.’).54 This ontological stability gives meaning to the teleologic-
al problem that settler colonialism is ‘impervious to regime change’55 – a point that
is perhaps most starkly observed in settler colonies that have transitioned from re-
pressive settler states to democratic settler states. In Argentina, for example, the tran-
sition from a military junta to a democratically elected civilian government left settler
colonialism intact. Thus, in settler colonies, transitional justice mechanisms may con-
front histories of violence, achieve various forms of justice and, as cases like
Argentina show, consolidate regime change, but the settler colony remains a settler
colony.
For Stephen Winter, redress politics in settler democracies does lead to a transi-
tion of sorts, specifically to a new regime of legitimation.56 A new regime of legitim-
ation, however, risks simply ‘doubling down’ on settler colonialism. As Dene scholar,
Glen Coulthard, explains, the lack of transition in settler democracies results in the
settler state manufacturing ‘a transition by allocating the abuses of settler coloniza-
tion to the dustbins of history, and/or purposely [disentangling] processes of [transi-
tional justice] from questions of settler-coloniality as such.’57 My argument, however,
extends further: Settler colonies cannot cease to be settler colonies without either
achieving self-supersession or facing an existential challenge.

54 Wolfe, supra n 16 at 388.

55 Ibid., 402.
56 Winter, supra n 1.
57 Coulthard, supra n 29 at 108.
 Settler Colonialism, Decolonization and Radicalizing Transitional Justice  9

Second, the teleologies of settler colonialism and transitional justice share a com-
mon orientation to futurity. Settler colonialism struggles to release itself both from
history and from its colonial present. As explored in detail earlier, settler colonialism

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– destroying to replace – strives for self-supersession to extinguish the settler colonial
relation in order to perfect the settler project and become ‘post-colonial.’ The settler
fantasy is one in which the ‘Indian problem’ has been eliminated and the colonizer is
no longer the colonizer but has themselves become the native to the homeland.
Transitional justice operates through a parallel teleological orientation to history
(moving past the past); thus, transitional justice risks becoming a method of settler
colonial self-supersession – a strategy to put colonialism behind us, to render coloni-
alism a thing of the past. Transitional justice allows settler states to enunciate the
position ‘that settles that,’ maximizing the polysemism of the verb ‘to settle,’58 i.e.: to
be ‘done,’59 to be resolved, to be agreed upon, to have paid a debt, to be calmed, and
above all, to achieve the fantasy of the post-colonial condition and the settled future.
Third, the telos of both settler colonialism and transitional justice is the liberal
polity. I have already established the liberalism of paradigmatic transitional justice, so
I turn now to the liberalism of settler colonialism. Of course, not all settler colonies
are liberal; however, liberalism is deeply imbricated with settler colonialism.
Liberalism and settler colonialism are both fundamental to modernity.60 Liberal phil-
osophy, specifically in the work of John Locke and John Stuart Mill, binds together
liberalism, colonialism and racism,61 and excludes (from equality and liberty) those
who are not deemed fully human. Central to liberalism is the value placed not only
on the individual but on the accumulation of wealth and the valorisation of private
property.62 Locke, indeed,

maintained that the native inhabitants of North America had no state, and thus
no effective sovereignty. They had not fully exploited the land and had neither
consented to nor conceived the use of money, and therefore could not be said
to have ownership of land.63

Aileen Moreton-Robinson, a Quandamooka scholar of the Goenpul tribe, explains

that this doctrine of terra nullius (the assertion that Indigenous lands belonged to no

58 See, also Byrd’s discussion of Lenape thinker, Joanne Barker, in Jodi A. Byrd, ‘Still Waiting for the “Post”
to Arrive: Elizabeth Cook-Lynn and the Imponderables of American Indian Postcoloniality,’ Wicazo Sa
Review 31(1) (2016): 75-89.
59 Audra Simpson, Mohawk Interruptus: Political Life across the Borders of Settler States (Durham, NC: Duke
University Press, 2014), 33.
60 Wolfe, supra n 16 at 394; Lily S. Mendoza, ‘Savage Representations in the Discourse of Modernity:
Liberal Ideology and the Impossibility of Nativist Longing,’ Decolonization: Indigeneity, Education &
Society 2(1) (2013): 1–19.
61 See, David Theo Goldberg, Racist Culture: Philosophy and the Politics of Meaning (Oxford: Blackwell,
1993), and Bhikhu Parekh, Liberalism and Colonialism: A Critique of Locke and Mill in Decolonization of
Imagination: Culture, Knowledge and Power, ed. Jan Nederveen Pieterse and Bhikhu Parekh (London: Zed
Books, 1995).
62 Mendoza, supra n 60 at 11-12.
63 Bruce Buchan and Mary Heath, ‘Savagery and Civilization: From Terra Nullius to the “Tide of History,”’
Ethnicities 6(1) (2006): 8, https://doi.org/10.1177/1468796806061077.
10  A.S.J Park

one) was founded on the liberal rendering of Indigenous peoples as outside of hu-
manity, part of nature64 - ‘merely part of the flora and fauna. . . begging to be tamed
and civilized.’65 Given that liberalism constituted a founding philosophy of settler co-

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lonialism, the liberal teleology of transitional justice presents the obvious problem of
reaffirming the very ideology that originally justified European colonization of
Indigenous lands.
Moreover, Indigenous scholars of decolonization have long warned that liberalism
is an instrument of settler colonialism. Standing Rock Sioux activist and scholar Vine
Deloria Jr. criticized the liberal civic inclusion model advanced in the post-War
United States as an expression of elimination. In contrast to Indigenous demands for
decolonization and sovereignty, civic inclusion was premised on a universalist as-
sumption that injustice was a problem of exclusion solved through the extension of
citizenship rights to groups defined by difference.66 As Deloria remarked, equality
‘was going to be given to us whether we want it or not.’67 Similarly, writing in the
late 1960s, Cardinal argued that the emphasis on equality and full citizenship in
Canada worked to paper over colonialism, advance assimilation and deny the rights
of Indigenous peoples.68
Similarly, contemporary Indigenous scholars have analysed the rise of liberal rec-
ognition as imbricated with the move to ‘settler governmentality’, which can be
defined as:

a relatively diffuse set of governing relations that operate through a circum-

scribed mode of recognition that structurally ensures continued access to
Indigenous peoples’ lands and resources by producing neocolonial subjectiv-
ities that coopt Indigenous people into becoming instruments of their own
dispossession.69

There is not space in this article to explore debates on recognition;70 however, in

broad strokes, recognition theory understands identities as constituted intersubject-
ively and non-recognition or misrecognition produces distortion and harm.71
Building from Frantz Fanon, Coulthard argues that settler colonialism now operates
not through force but through a politics of recognition that interpellates Indigenous
peoples as colonized subjects (although, of course, force remains). Recognition, thus,
operates as a ‘field of power’72 that sustains the colonial relation, not least through

64 Aileen Moreton-Robinson, The White Possessive: Property, Power and Indigenous Sovereignty (Minneapolis:
University of Minnesota Press, 2015).
65 Mendoza, supra n 60 at 12.
66 See, David Myer Temin, ‘Custer’s Sins: Vine Deloria Jr. and the Settler-Colonial Politics of Civic
Inclusion,’ Political Theory 43(3) (2018): 357–379.
67 Vine Deloria Jr., Custer Died for Your Sins: An Indian Manifesto (London: Collier-Macmillan, 1969), 179.
68 Cardinal, supra n 20
69 Coulthard, supra n 29 at 156, emphasis added
70 Examples: Nancy Fraser and Axel Honneth, From Redistribution to Recognition: A Political-Philosophical
Exchange, London: Verso, 2003.
71 Coulthard, supra n 29 at 29-30.
72 Ibid., 17 (emphasis in original).
 Settler Colonialism, Decolonization and Radicalizing Transitional Justice  11

maintaining the power of the settler to grant recognition to the colonized.73

According to Kahnawake Mohawk scholar Audra Simpson, recognition is a ‘gentler’
method of ‘managing Indians and their difference.’74 For Audra Simpson and

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Coulthard, recognition – and its attendant accommodation and toleration – trans-
forms the question of Indigenous national sovereignties over land into a question of
cultural difference for which there is a liberal multicultural solution.
The effect of a cultural politics of recognition is the minoritization of Indigenous
peoples,75 which treats Indigenous peoples like any other minority within a context
of equal, competing claims within the multicultural landscape. This erases
Indigenous peoples’ original claim to the land and the originary violence that created
and sustains the settler polity, which returns us to the logic of denial. Centrally, rec-
ognition advances the teleological project of self-supersession through containing
Indigenous peoples within a multicultural framework of the liberal settler state,
where the settler-native relation is superseded by a state-citizen relation.
Finally, as Chickasaw scholar, Jodi Byrd, points out, liberalism continues to be in-
extricable from colonialism as liberties in settler polities are premised on the invisibi-
lized dispossession wrought by settler colonization.76 Settler colonialism (and its
forgetting or misremembering) is the condition of possibility for liberal freedoms.77
Liberal states debate greater pluralism, inclusion and humanism,78 while ‘indigenous
peoples and nations, who provide the ontological and literal ground for such debates,
are continually deferred into a past that never happened and a future that will never
come.’79 Similarly, I argue, the articulation of the liberal value of self-determination
in settler colonies is situated on the denial of the self-determination of Indigenous
peoples.
My discussion attempts to establish a theorization of the limits of paradigmatic
transitional justice in confronting settler colonialism. Nonetheless, I emphasize that
transitional justice mechanisms in settler democracies in practice are complex. As
Balint, Evans, and McMillan powerfully argue questions of sovereignty and structural
inequality are central to transitional justice in settler colonialism,80 an insight echoed
in the recommendations arising from transitional mechanisms in Canada and
Australia. As Penelope Edmonds explores in her analysis of the US, Australia and
New Zealand, reconciliation activities are deeply ambivalent, simultaneously repres-
sive and emancipatory, coercive and utopic.81 Analyses of Canada’s TRC reflect this
ambivalence as commentators see the TRC both as potentially giving rise to account-
ability and as a site for decoupling colonial wrongdoing from the larger and ongoing
colonial project, forcing ‘closure’ on survivors while resurrecting Canada’s benevolent

73 Ibid., 30
74 Simpson, supra n 59 at 20.
75 Simpson, supra n 59 at 16.
76 Byrd, Jodi A., The Transit of Empire: Indigenous Critiques of Colonialism (Minneapolis: University of
Minnesota Press, 2011).
77 Ibid., xxiv.
78 Ibid., xxvi.
79 Ibid., 221.
80 Balint, Evans, and McMillan, supra n 10.
81 Penelope Edmonds, Settler Colonialism and (Re)Conciliation Frontier Violence, Affective Performances, and
Imaginative Refoundings (Basingstoke: Palgrave Macmillan, 2016).
12  A.S.J Park

identity.82 Similarly, analyses of the Australian National Inquiry and apology for the
Stolen Generations reflect a deep ambivalence: Some commentators see the poten-
tial for transitional justice ‘to draw critical attention to the role and the harms of the

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state’83 and frame discussions of ‘what kind of transition is desired,’84 while others re-
gard transitional mechanisms in Australia as a means to historicize injustice and prej-
udiced attitudes, to construct Indigenous peoples as perpetual victims and to relieve
the guilt of settlers.85 Similarly, the settlements for breaches of the Treaty of
Waitangi in New Zealand have been described as both as among the most significant
efforts to address wrongs against Indigenous peoples,86 and as a means to re-
entrench settler control over land and diminish Indigenous rights.87
At the same time, Indigenous peoples participate in- and have often fought for
transitional justice mechanisms. However, being critical of transitional justice does
not ‘diminish the anguish of survivors or their families nor the sacrifice, commitment,
and struggle of the families and community organizations that have acted out of love
to try to bring justice and healing to their own lives and to our communities.’88
Indeed, transitional justice mechanisms have wide ranging goals, including vindicat-
ing victims, healing, accountability, combatting impunity, re-narrating histories etc.
Transitional justice goals, moreover, may be aimed at- or achieved at- the level of the
individual, family, community, society or the state. My analysis does not negate the
possibility that some transitional justice goals can be achieved for some Indigenous
peoples. For example, survivors of violence could experience healing through an
apology or closure through a TRC. However, I contend, these other goals are subor-
dinate to the overarching goal of ‘transition,’ which distinguishes transitional justice
from other forms of justice, and which my analysis problematizes.
Moreover, while transitional justice mechanisms can ‘bring healing and solace to
some survivors and the families of those victimized,’89 Indigenous scholars argue that
forms of state redress for trauma ‘are partly designed to uphold the structure of set-
tler colonialism’90 through depoliticizing individual grief. Byrd and Park argue that
settler colonialism has entailed the derealization of Indigenous life as ungrievable and
that rendering Indigenous life grievable combats the foreclosure of Indigenous futur-
ity;91 however, Simpson contends that in the discourse of reconciliation embedded

82 Overview of literature in Augustine SJ Park, ‘Settler Colonialism and the Politics of Grief: Theorising a
Decolonising Transitional Justice for Indian Residential Schools,’ Human Rights Review 16(3) (2015):
273-293.
83 Henry, supra n 6 at 211.
84 Ibid.
85 See, Ibid., 210.
86 The International Center for Transitional Justice, New Zealand Confronts Violent Past, Gives New Hope to
Maori (2015) https://www.ictj.org/news/new-zealand-confronts-violent-past-gives-new-hope-maori
(accessed 1 June 2019).
87 Margaret Mutu, ‘Behind the Smoke and Mirrors of the Treaty of Waitangi Claims Settlement Process in
New Zealand: No Prospect for Justice and Reconciliation for Maori without Constitutional
Transformation,’ Journal of Global Ethics 14(2) (2018): 208–221, https://doi.org/10.1080/17449626.
2018.1507003.
88 Simpson, supra n 29 at 238.
89 Ibid
90 Ibid.
91 Byrd, supra n 76 at xviii-xxxv; Park, supra n 82.
 Settler Colonialism, Decolonization and Radicalizing Transitional Justice  13

in state-sponsored transitional mechanisms, grief is used as trauma politics to depol-

iticize Indigenous claims. Coulthard argues that reconciliation works to render ‘con-
sistent Indigenous assertions of nationhood with the state’s unilateral assertion of

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sovereignty over Native peoples’ lands and populations.’92 At the same time, recon-
ciliation becomes a ‘pacifying discourse’ in the absence of restitution of lands and
lived acknowledgement of Indigenous self-determination.93 Indeed, the central criti-
cism of transitional justice in Canada and Australia is that transitional justice practi-
ces fail to recognize colonial continuities94 and thus works to reaffirm settler
sovereignty. If paradigmatic transitional justice cannot confront settler colonialism
and, indeed, if it works to reproduce settler colonialism, can transitional justice be
redeemed in the settler colonial context?

D EC OL ON I Z A TI ON A ND R ET HI N K IN G T RA N SI TI ON A L J US TI C E
I shift now to a discussion of decolonial theory advanced by Indigenous thinkers.
Doing so is important: It allows us to escape the closures presented by both settler
colonialism and settler colonial theory. Settler colonial theory bears within it tensions
with its own critical orientation: First, settler scholars of settler colonialism engage in
self-critique while simultaneously effecting a radical re-centring of ourselves.
Nonetheless, settler critique of settler colonialism is necessary if we take seriously
Leanne Simpson’s perspective on Canadian resistance to decolonization:

We need Canadians to help themselves, to learn to struggle and to understand

that their great country of Canada has been and is a death dance for
Indigenous peoples. They must learn to stop themselves from plundering the
land and the climate and using Indigenous peoples’ bodies to fuel their econ-
omy, and to find a way of living in the world that is not based on violence and
exploitation.95

Similarly, Byrd explains settlers must ‘acknowledge their position within empire
and to make visible what colonialism hides.’96 Unangax scholar, Eve Tuck, writing
with settler scholar, Aimee Carrillo Rowe, argues settler colonialism analyses genera-
tively attend ‘to life lived on stolen Indigenous land.’97 Settler colonial theory, thus,
is a necessary and urgent project but must be wrested from its constant reassertion
of the settler centre and retrenchment of the irresistibility of the settler/settled fu-
ture. Second, settler colonial theory struggles to imagine an ending that is not the
totalizing project that settler colonialism itself proposes. Lenape scholar Joanne
Barker argues that the settler colonial lens is pre-conclusive and forecloses possibil-
ities outside of itself.98 However, Macoun and Strakosch argue against the tendency

92 Coulthard, supra n 29 at 107.

93 Ibid, 127.
94 Example, Henderson and Wakeham, supra n 10.
95 Simpson, supra n 29 at 101.
96 Byrd, supra n 76 at xxx.
97 Rowe and Tuck, supra n 42 at 6.
98 Byrd, supra n 58 at 84.
14  A.S.J Park

to understand settler colonialism as inevitable and point out that ‘the fact that settler
colonialism struggles to narrate its own ending does not mean it cannot end.’99
Instead, settlers need ‘to recognize Indigenous leadership in critiques of colonialism

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which they have been offering from lived experience and analysis for centuries’100
and resist ‘reinscribing settler academics’ political and intellectual authority to the
detriment of Indigenous voices.’101
Thus, I now shift attention from settler colonialism to the resistance it occasions.
Indeed, while transitional justice serves liberal self-supersessionism, settler colonial-
ism never achieves the totality for which it strives. We are, indeed, constantly con-
fronted by the incompletion of the settler project. Audra Simpson points to
‘colonialism’s ongoing existence and simultaneous failure’ to highlight how settler co-
lonialism ‘fails at what it is supposed to do: eliminate Indigenous peoples; take all
their land; absorb them into a white, property-owning body politic.’102 In the face of
eliminationism, Anishinaabe scholar, Gerald Vizenor, tells us of survivance: ‘an active
sense of presence, the continuation of native stories, not a mere reaction, or a surviv-
able name. Native survivance stories are renunciations of dominance, tragedy, and
victimry.’103

Thinking Decolonization
Eve Tuck and K. Wayne Yang explain that

decolonization in the settler colonial context must involve the repatriation of

land simultaneous to the recognition of how land and relations to land have al-
ways already been differently understood and enacted; that is, all of the land,
and not just symbolically.104

Decolonization requires a ‘change in the order of the world’105 and, as such, can-
not be simply treated as a social justice metaphor – a tendency that Tuck and Yang
argue can be positioned in a long history of settler efforts to improve the conditions
of colonialism while sustaining the colonial framework.106 Following the lead offered
by Indigenous scholars of decolonization, I draw out three interwoven strands of
thought: Refusal, resurgence and prefiguration.
In Mohawk Interruptus, Audra Simpson posits a politics of refusal. Fundamentally,
she names the refusal to disappear, the refusal to be eliminated.107 In exploring the
assertion of lived sovereignty of the Kahnawak’kehró:non, Simpson narrates:

99 Alissa Macoun and Elizabeth Strakosch, ‘The Ethical Demands of Settler Colonial Theory,’ Settler
Colonial Studies 3(3-04) (2013): 427, https://doi.org/10.1080/2201473X.2013.810695.
100 Lynne Davis, Jeff Denis, and Raven Sinclair, ‘Pathways of Settler Decolonization,’ Colonial Studies 7, no.
4 (2017): 396, https://doi.org/10.1080/2201473X.2016.1243085.
101 Ibid., 393.
102 Simpson, supra n 59 at 7-8.
103 Quoted in Simpson, supra n 29 at 196.
104 Tuck and Yang, supra n 15 at 7 (emphasis in original).
105 Ibid., 31
106 Ibid., 3.
107 Simpson, supra n 59 at 22.
 Settler Colonialism, Decolonization and Radicalizing Transitional Justice  15

the fundamentally interrupted and interruptive capacity of that life within set-
tler society. Their political consciousness and actions upend the perception
that colonization, elimination, and settlement are situations of the past.

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Kahnawak’kehró:non are not settled; they are not done; they are not gone.
They have not let go of themselves or their traditions, they subvert this re-
quirement at every turn with their actions.108

For Simpson, Indigenous nationhoods interrupt the settler story and settler futur-
ity. Thus, Simpson charts ‘a cartography of refusal, one that takes shape in the invo-
cation of the prior experience of sovereignty and nationhood, and their labor in the
present.’109 In her analysis of Mohawk membership/citizenship, Simpson finds that
Kahnawak’kehró:non continue to be and act as ‘nationals of a precontact Indigenous
polity’.110 Leanne Simpson similarly writes of the creation of ‘Nishnaabeg futures
that categorically refuse and reject dispossession and settler colonialism.’111 Cook-
Lynn asserts that Indigenous nations are ‘separate countries,’112 which refuses the
claims of the settler state. These expressions of national refusal echo Deloria’s obser-
vation that the ‘tribe must stand before history and reclaim its political and cultural
identity and independence.’113
Just as earlier Indigenous thinkers, such as Deloria and Cardinal, refused the polit-
ics of civic inclusion, contemporary Indigenous theorists highlight the refusal of the
liberal recognition of the settler state. Seeking accommodations and state recognition
for Indigenous peoples reaffirms the authority and legitimacy of the settler state to
be the grantor of recognition. Thus, Leanne Simpson urges Indigenous ‘movements
that refuse colonial recognition as a starting point and turn inwards, building a polit-
ics of refusal.’114
Refusal is intertwined with resurgence. The refusal of colonial dispossession, in-
deed, is the ‘focal point of resurgent thinking and action’115 and the possibility of ‘a
radical alternative present.’116 Thus, Coulthard, drawing from Frantz Fanon, argues
that ‘those struggling against colonialism must “turn away” from the colonial state
and society and instead find in their own decolonial praxis the source of their liber-
ation.’117 Coulthard calls for self-recognition, self-affirmation, self-transformation
that resists the politics of recognition that orients to the state. Leanne Simpson,
moreover, focuses on decentering the state and the renewal and revivification of
Indigenous traditions, recognizing tradition as fluid and dynamic:

108 Ibid., 33.

109 Ibid.
110 Ibid., 2.
111 Simpson, supra n 29 at 10.
112 Cook-Lynn, supra n 25 at 24.
113 Vine Deloria Jr., Behind the Trail of Broken Treaties (New York: Delacourt, 1974), 250.
114 Simpson, supra n 29 at 177.
115 Ibid., 34
116 Ibid., 9.
117 Coulthard, supra n 29 at 48 (emphasis in original).
16  A.S.J Park

Building diverse, nation-culture-based resurgences means significantly reinvest-

ing in our own ways of being: regenerating our political and intellectual tradi-
tions; articulating and living our legal traditions; language learning; creating

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and using our artistic and performance based traditions. [Decolonization]
requires us to reclaim the very best practices of our traditional cultures, know-
ledge systems and lifeways in the dynamic fluid, compassionate, respectful con-
text in which they were originally generated.118

Resurgence echoes the calls of earlier Indigenous intellectuals. Deloria, for ex-
ample, theorized the revival of Indigenous customs, and social, legal and political
orders,119 while Cardinal called for Indigenous revitalization without the interference
of settlers.120 The referent of resurgence is not the state but a place-based regener-
ation of Indigenous peoples, nations and ways. For Coulthard ‘Indigenous resur-
gence is at its core a prefigurative politics – the methods of decolonization prefigure
its aim.’121 Leanne Simpson expresses prefiguration through embodied, everyday
practices of Indigenous presence, where the present is a collision between the past
and the future.122 Cherokee scholar, Jeff Corntassel, urges ‘placed-based practices of
resurgence’ that are grounded in nations and the everyday,123 while Lawrence
emphasizes ‘re-empowerment’ through ‘re-embracing traditional cultural values. . .
everything is based on language and relationship to the land.’124 Kwagiulth scholar,
Sarah Hunt, writing with settler scholar, Cindy Holmes, explore the everyday prac-
tice of decolonization ‘acknowledg[ing] that Indigenous peoples’ resistance to colo-
nialism has unfolded in daily acts of embodying and living Indigeneity, honoring
longstanding relationships with the land and with one another.’125 For these scholars
‘the daily actions undertaken by individual Indigenous people, families, and com-
munities’ are as vital to decolonization as social movements and activism.126 Thus,
resurgence encompasses individuals, intersubjectivity, communities, and nations,
everyday practice and radical mobilization.

Can Transitional Justice be Decolonizing?

Writing on redress politics, Stephen Winter alerts us that transitional justice poses a
‘potentially existential’ danger to settler colonies.127 While Winter does not explore
this intriguing insight, it is precisely this ‘threat’ that I argue transitional justice must
pursue and embrace. Looking through the lens of decolonization, I circle back to

118 Quoted in ibid., 155.

119 Deloria supra n 67 at 266.
120 Cardinal supra n 20 78-79.
121 Coulthard, supra n 29 at 159 (emphasis in original).
122 Simpson, supra n 29 at 193.
123 Ibid., 192.
124 Bonita Lawrence, Fractured Homelands: Federal Recognition and Algonquin Identity in Ontario
(Vancouver, UBC Press, 2012), 17-18.
125 Sarah Hunt and Cindy Holmes, ‘Everyday Decolonization: Living a Decolonizing Queer Politics,’
Journal of Lesbian Studies 19(2) (2015): 157, https://doi.org/10.1080/10894160.2015.970975.
126 Ibid., 158.
127 Winter, supra n 1 at 15.
 Settler Colonialism, Decolonization and Radicalizing Transitional Justice  17

transitional justice under settler colonialism. If transitional justice advances the total-
ity of settler futurity through liberal self-supersessionism, should transitional justice
be ‘turned away’ from? Or, can transitional justice be decolonized? Can it advance

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decolonization?128 I explore these questions through a kind of counterfactual propos-
ition: If transitional justice were radicalized, then it bears the potential to contribute
to a decolonial politics. The radicalization I contemplate would challenge paradig-
matic transitional justice fundamentally. Rather than prescribing concrete manifesta-
tions, I turn to a series of principles that emerge from this theoretical discussion.
These principles are infused with the refusal, resurgence and prefiguration theorized
by Indigenous scholars: decentring the settler state, inter-nationalizing the justice re-
lationship, delegitimizing the settler state, abandoning liberal teleology and embrac-
ing indeterminacy.
Radicalized transitional justice would decentre the settler state. As Leanne
Simpson tells us, resurgence requires refusing ‘the state’s framing of the issues.’129
‘[T]his is critical,’ she writes, ‘because settler colonialism will always define the issues
with a solution that reentrenches its own power.’130 Thus, decentring the state
deprives the state of the power to define the issues and their solutions, including
which issues should be answered with transitional justice mechanisms. While enact-
ing refusal, this opens space for prefigurative justice organizing at the level of individ-
uals, the intersubjective and within and between communities. These practices
already exist. For example, the community-based restorative justice practices of the
Remembering the Children Society (RCS) exemplifies transitional justice operating
outside of the state. A collective of First Nations, Métis and settler members, the
RCS works to commemorate children who died at the Red Deer Industrial School,
one of Canada’s most notorious residential schools, including through the resurgent
focus on traditional practices.131 Nyungar scholar and elder, Simon Forrest, with
Michelle Johnston explore transitional justice practices in Australia that have taken
place beyond the state. In particular, the 2013 return of art created in the 1940s by
children of the Stolen Generations and the storytelling this art prompted have con-
tributed to healing, while the exhibition of these children’s art has helped to bring to-
gether settler and Indigenous communities.132
Radicalized transitional justice would inter-nationalize the justice relationship.
Rather than the state remediating wrongdoing to a sub-population of its citizens, the
state would be required to engage Indigenous nations as sovereign nations, thus
shifting the justice relationship to an inter-national level. Paralleling Deloria’s con-
ceptualization of ‘nations-within-a nation’ and the struggle for ‘self-rule,’133 Audra

128 For alternative responses to these questions, see Rosemary Nagy, ‘The Scope and Bounds of
Transitional Justice in the Canadian Truth and Reconciliation Commission,’ International Journal of
Transitional Justice 7(1) 2013: 52-73.
129 Simpson, supra n 29 at 176.
130 Ibid., 178.
131 Augustine SJ Park, “Remembering the Children: Decolonizing Community-Based Restorative Justice for
Indian Residential Schools,” Contemporary Justice Review 19(4) (2016): 424–444, https://doi.org/10.
1080/10282580.2016.1226818.
132 Simon Forrest and Michelle Johnston, ‘Koolark Koort Koorliny: Reconcilition, Art and Storytelling in
an Australian Aborigine Community,’ Australian Aboriginal Studies 1 (2017): 14-27.
133 Cook-Lynn, supra n 25 at 5.
18  A.S.J Park

Simpson explores the concept of ‘nested sovereignties’ to explain that ‘Indigenous

sovereignties and Indigenous political orders prevail within and apart from settler
governance’.134 Shifting the justice relationship prefiguratively puts into practice the

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acknowledgement of Indigenous sovereignties and thus problematizes settlement to
enact a refusal of settler colonial domination. There are no examples, thus far, of
transitional justice mechanisms in settler colonies that proceeded on the basis that
Indigenous peoples are sovereign nations; however, the Calls to Action that emerged
from the Canadian TRC suggest that transitional justice can point us in this direc-
tion. Call to Action 45 calls upon the Canadian state to develop a Royal
Proclamation of Reconciliation with Indigenous peoples that would ‘reaffirm the
nation-to-nation relationship between Aboriginal peoples and the Crown.’135 It
remains to be seen whether this Call will be implemented and to what extent it will
transform relations between the settler state and Indigenous peoples.
Radicalization, moreover, would enact a fundamental reversal of the usual rela-
tionship of transitional justice to the state. Transitional justice paradigmatically works
to legitimize the state, distancing the state from the wrongdoing of predecessors.
Radicalizing transitional justice flips this relation on its head. Rather than legitimizing
the state, radicalized transitional justice would precipitate a crisis of legitimacy for
the settler state, forcing the settler state and settler society to confront the fact of on-
going colonialism and raise existential questions of what to do about it. Call to
Action 45 from the Canadian TRC implies a challenge to the legitimacy of the settler
state’s origins by calling for the repudiation of ‘concepts used to justify European
sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery
and terra nullius’;136 however, rejecting these founding principles has not resulted in
meaningful change in other settler contexts. Mabo v Queensland, a 1992 decision of
the High Court of Australia on native title determination, ‘removed terra nullius from
Australian law [but] also established that where “traditional” customs had been
altered by colonization, the native title of claimants may be considered to have been
swept away “by the tides of history.”’137 Mabo, thus, cautions us that steps taken to
challenge the settler state’s legitimacy must also resist inadvertently reproducing set-
tler colonialism.
Finally, radicalized transitional justice would abandon liberal teleology, recogniz-
ing the deep interrelation between liberalism and settler colonialism. As we have
seen in the decolonizing refusal of the politics of recognition and the resurgence of
Indigenous traditions, liberalism is decidedly not the future proposed by the
Indigenous scholars I explore here. At the same time, refusing teleological rationality
tout court disrupts the settler’s linear concept of time and the colonial ideology of
progress.

134 Simpson, supra n 59 at 11.

135 Truth and Reconciliation Commission of Canada, Calls to Action (2015), https://nctr.ca/assets/
reports/Calls_to_Action_English2.pdf, 4
136 Ibid., 5
137 Buchan and Heath, supra n 63 at 21.
 Settler Colonialism, Decolonization and Radicalizing Transitional Justice  19

C ON CL US I ON
In my analysis, I have proposed a radicalized transitional justice that decentres the
settler state, prefigures inter-national relationships, produces a crisis of legitimacy for

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the settler state and abandons liberal teleology. In mobilizing radicalized transitional
justice, the settler state and settler society are unmoored. Eva Mackey points out that
settlers hate not knowing.138 Her analysis centres on land rights and the ways in
which settlers seek certainty about land (and feel entitled to control and assert own-
ership) in the interest of doing business and engaging in development projects.
Mackey makes the point that law has worked to transform ‘fantasies of possession’
and ‘fantasies of entitlement’ into settler certainties.139 But, while settlers seek cer-
tainty, radicalized transitional justice requires settlers to accept uncertainty. Settlers
may ask: ‘[W]hat will decolonization look like?. . . What will be the consequences of
decolonization for the settler?’140 As Sium, Desai and Ritskes explain, ‘definitions of
“decolonization”’ remain ‘open, and to a certain extent, remain unknown.’141 The
question of what decolonization means for settlers cannot, however, ‘be answered in
order for decolonization to exist as a framework.’142 As Mackey writes: ‘What is clear
is that decolonization entails uncertainty’;143 and, if ‘the construction of and defence
of certainty is at the core of coloniality, then settler uncertainty may actually be ne-
cessary for decolonization.’144 Indeed, ‘decolonization implicates and unsettles every-
one.’145 Radicalized transitional justice, if it can contribute to a decolonizing agenda,
must also advance indeterminacy, which requires settlers to accept an uncomfortable
uncertainty in facing the challenge to settled futurity.
This analysis also implies questions for transitional justice in settler colonies that
are not established liberal democracies. In highlighting the problem of ontological
stability, I noted that settler colonies that transition from illiberal to liberal regimes
remain settler colonies. Indeed, paradigmatic sites of transitional justice have often
been illiberal settler colonies, such as South Africa and various Latin America states.
Some scholars have attended to this fact: For example, exploring the TRCs in
Canada and South Africa, Nagy points to the shared ‘settler denial in both countries,’
which is ‘the refusal or inability of Whites in South Africa and non-Aboriginals in
Canada to acknowledge the existence of and their connection to systemic vio-
lence.’146 However, more systematic research is needed, notably in relation to the fol-
lowing questions: To what extent have transitional justice mechanisms in illiberal
settler colonies addressed settler colonialism? In what ways, if any, have transitional
justice measures examined the specific impacts of illiberal regimes on Indigenous

138 Eva Mackey, ‘Unsettling Expectations: (Un)Certainty, Settler States of Feeling, Law, and
Decolonization,’ Canadian Journal of Law and Society 29(2) (2014): 235–252, https://doi.org/10.1017/
cls.2014.10.
139 Ibid., 242
140 Tuck and Yang, supra n 15 at 35.
141 Sium, Desai, and Ritskes, supra n 24 at ii.
142 Tuck and Yang, supra n 15 at 35.
143 Mackey, supra n 138 at 249
144 Ibid.
145 Tuck and Yang, supra n 15 at 7.
146 Rosemary Nagy, ‘Truth, Reconciliation and Settler Denial: Specifying the Canada-South Africa
Analogy,’ Human Rights Review 13(3) (2012): 350, https://doi.org/10.1007/s12142-012-0224-4
20  A.S.J Park

peoples? How have transitions to liberalism in these paradigmatic sites shaped settler
colonialism in these spaces today? And, has transitional justice contributed to decol-
onization in these paradigmatic sites? Reading paradigmatic cases through the lens of

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settler colonialism and decolonization may give us new insights into the limitations
(and promise) of transitional justice for Indigenous peoples.