Making Space for justice after Mabo: Theological critiques of sovereignty

Mark Brett ABC Religion & Ethics 3rd July 2012

The Mabo decision of the High Court in 1992 might be taken as a paradigm case of what has been called "complex space." Instead of assuming an homogenous jurisdiction over Australian territory, the court had to acknowledge the validity of a different legal system and "storied" country inside the national borders.

This acknowledgment corresponds to the idea of complex space in recent theological discussion, which takes its cue from medieval societies that encompassed a collection of communal polities, including "intermediate bodies" with overlapping jurisdictions that stood between individuals and the Crown.

Complex and storied space has been contrasted with the invention within settler colonial states of smooth or "simple" space. In post-Mabo times, Australians know this idea of smooth and unstoried terrains through the Latin phrase terra nullius, although in the nineteenth century the favoured terminology was "waste" lands.

Ironically it was the imperial officers in London in the 1830s who could imagine the possibilities of complex space at the margins of the empire (including what we would now call legal pluralism), not simply because their evangelical convictions gave priority to the justice of God over the capricious will of sovereigns, but because their ideas concerning justice for Indigenous peoples had been influenced by modern theories of natural rights.

Instead of a sweeping disregard for the redemptive possibilities of the law, as often found in Protestant theology, these Christian politicians adopted a more Jewish conviction that some laws are life giving (see, for example, Psalm 1 and Deuteronomy 30:19). Following their tireless campaign against slavery in the early nineteenth century, and especially after the Slavery Abolition Act of 1833, the "Clapham Sect" and their allies turned their attention to Aboriginal peoples of South Africa, the Caribbean, Australia and New Zealand. And the assertion of natural Indigenous rights turned out to be a significant element in their advocacy.

On the specific issue of land acquisition in colonial expansions, the secularizing theorists of modern international law had distinguished between "waste" lands on the one hand, and "inhabited" lands on the other, providing a significantly different approach to each category of land.

Notably Hugo Grotius, in his foundational work The Rights of War and Peace (1645), argued that although colonial expansion could be justified, such expansion did not extinguish the land rights and political autonomy of native tribes. Accordingly, when discussing Maori rights in 1848, we find Louis Chamerovzow making reference to Grotius' analysis of traditional land rights, which had combined arguments from both classical and biblical precedents:

"To disturb any one in the actual and long possession of territory, has in all ages been considered as repugnant to the general interests and feelings of mankind. For we find in holy writ, that when the King of the Ammonites demanded the lands situated between the rivers Arnon and Jabok, and those extending from the deserts of Arabia to the Jordan, Jepthah opposed his pretentions by proving his own possession of the same for three hundred years."

Chamerovzow went on even to question the assumptions of superiority in European civilization:

"Is it that in proportion as men become civilized, they grow the more sanguinary and cruel? Then let not in the light of civilization upon savages, for they will taunt us with being even more savage than they."

He draws the conclusion that:

"If native tribes, that is, Aboriginal nations are to be shut out from the great system of international polity, and declared incompetent to the exercise of sovereign power over themselves, simply because they differ from us in customs and habits, then is opened a wide field for oppression, injustice and inhumanity."

The evangelical reformers wielded significant influence in the establishment of the new colony of South Australia and in the Treaty of Waitangi, but it must be acknowledged that this influence had declined after the 1840s, along with its philosophy of natural rights.

The historian Andrew Fitzmaurice draws attention to the later initiatives of Saxe Bannister (the Attorney General of New South Wales, 1823-1826), but in general, we may have to conclude that the resurgence of human rights theory had to wait until World War II conclusively demonstrated that national sovereignties could not be fully trusted and, consequently, that some system of international law was urgently needed to protect minority groups from genocide.

Significantly, as Fitzmaurice shows, the development of genocide law in the 1940s laid claim to foundations in the older traditions of natural rights in international law. He goes too far in describing this legal tradition as "anticolonialism," but we can at least agree that the international legal theory created by Grotius and Vattel shaped the initiatives of the evangelical reformers in the British Colonial Office of the 1830s. It is these initiatives that can still inspire a postcolonial advocacy of legal pluralism, even if we now reject the associated theology of civilization.

Geoffrey Robertson QC is therefore quite correct to assert that the Letters Patent of 1836 regarding South Australia are part of a "Grotian" moment, freighted with significance for later generations. Subsequent legal commentary has stressed that the South Australian statute of 1834 (South Australian Colonization Act) had the power to bind the monarch, and thus a question has been raised as to whether the king exceeded the parliamentary brief in his Letters Patent.

Regardless of this complexity in English sovereignty of the day, there was a change of government in London in 1835, and under the influence of the evangelical reformers in the Colonial Office, the Letters Patent invoke the strictures of earlier international legal theory governing colonial expansion:

"PROVIDED ALWAYS that nothing in those our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own Person or in the Persons of their Descendants of any Land therein now actually occupied or enjoyed by such Natives."

The Colonization Commissioners, empowered by statute, then issued instructions in 1836 to the Resident Commissioner in South Australia reiterating the terms contained in the Letters Patent:

"You will see that no lands which the natives may possess in occupation or enjoyment be offered for sale until previously ceded by the natives to yourself. You will furnish the protector of the aborigines with evidence of the faithful fulfillment of the bargain or treaties which you may effect with the aborigines for the cession of lands."

Similar strictures preserving Aboriginal rights were explicitly incorporated into the South Australia Amendment Act of 1838, but they are missing from the Waste Lands Act of 1842, which superseded previous arrangements for the alienation of land in all the colonies, including South Australia.

Thus, if the "Grotian moment" is to be given a narrowly defined legal lifespan, it would last from 1836 to 1842 (and land grants in Adelaide between those dates may be exposed to Indigenous litigation not yet attempted), but surely no Australian of good conscience could imagine that this limit defines the scope of the compensation issues.

The prevailing opinion in the Mabo decision was that native title holders should be compensated for the Crown's extinguishment of native title only after the Racial Discrimination Act of 1975. In fact, three of the High Court judges in this case had argued to the contrary that "just terms" compensation for the compulsory acquisition of land was available in the Constitution from 1901, and therefore it should have been available to all the subjects of the Crown from that date.

The fact that this more reasonable view of compensation did not prevail in the final judgment is an indictment against modern Australian jurisprudence; the present position of native title law is that historic, racist injustices (prior to 1975) cannot be addressed.

Native title has, in any case, not been deemed a proprietary right. There have been waves of dissent from time to time, notably the successful civil rights campaigns in the 1960s and 70s, but the injustices from two hundred years of dispossession have not been properly compensated.

Even in the Northern Territory, where a substantial amount of land has been returned to traditional Aboriginal owners under land rights legislation, the healing of social relationships has been repeatedly undermined by bureaucratic impositions, most recently requiring the federal Government to suspend the Racial Discrimination Act in order to implement its interventions. The re-vamped "Stronger Futures" legislation has been received by many Indigenous leaders as indicative of repeated patterns of racist disrespect on the part of Australian governments.

While there are inevitable complexities that arise in any attempt to address the wrongdoing of previous generations, there are also a number of credible strategies of restorative justice in postcolonial reforms.

It is hard to avoid the conclusion that the current situation has been deemed tolerable by the white, democratic majority for reasons that arise both from economic interest and from the largely unexamined legacies of racism. The white Australia policy is indeed not a matter of distant nineteenth century history; it endured for the first half of the twentieth century and is for many, therefore, a matter of living, painful memory.

Theological critiques of racism, although numerous, have been sometimes shallow in their analysis and often ineffective in their impact on social change. Among the most detailed and compelling recent discussions, both J. Kameron Carter and Willie James Jennings have identified Christian theological supercessionism - the appropriation and displacement of Israel's story - as one of the enabling conditions of white colonial ideology.

Hypotheses such as these may be contestable to the extent that they attempt to diagnose a deep social pathology that may be determined by a wide range of factors (indeed, ethnocentrism was apparent in most cultures throughout history), but to my mind there is a special responsibility that belongs to critical theology even if such theories connecting racism and supercessionism are only half true.

In the case of Jennings, his argument provides a clear proposal for Christian readers of the Hebrew Bible to read the scriptures "as Gentiles." As Jennings puts it:

"To recapture the original situation of Gentile existence one must address what amounts to the racial unconscious that continues to shape Christian readings of biblical Israel and Christian interaction with living Israel."

The suggestion is profound, and much more could be said about the implementation of his hermeneutical proposal than can be said here.

In the case of the colonial "doctrine of discovery," there can be little doubt that some of its assumptions can be derived from the European habit of reading "as Israel" - notably in adopting the settler narratives from the book of Genesis. Puritan colonists of Massachusetts were quite explicit in their invocations of Genesis typologies, even providing the antecedents for the idea of "waste" lands. Robert Cushman, for example, wrote that:

"As the ancient patriarchs ... removed from straighter palaces into more roomy, where the land lay idle and waste, and none used it, though there dwelt inhabitants by them (as Genesis 13: 6, 11, 12 and 34:21 and 41:20), so it is lawful now to take a land which none useth, and make use of it."

It is worth noting that recent studies of the ancestral narratives in Genesis stress that these texts are distinctive in their concern for proper land purchase from the Indigenous inhabitants of the land (Genesis 23). The social imagination of the so-called priestly tradition describes Abram as the father of "many nations" (Genesis 17:4-5) and Jacob's descendants as an "assembly of nations" (Genesis 35:10-11). In each case, the point is so significant that the ancestors' names are changed - to Abraham and to Israel - in order to mark the character of plurality.

So, perhaps against expectations, the biblical roots of the "doctrine of discovery" point to political pluralism.

A pressing question that emerges in the 1830s, however, is how the Colonial Office could demand evidence of bargains and treaties in South Australia while, at the same time, they rejected the so-called "Batman treaty" negotiated in Port Philip in 1835. While this contract with the traditional owners was often associated with Quaker convictions about treaties, Batman was not an agent of the Crown and therefore not authorized to make a treaty.

What remains unclear about the founding of Victoria is why the Colonial Office did not then press for a valid treaty at this "Grotian moment" in Australian history, to adopt Geoffrey Robertson's aptly chosen phrase.

In his recent attempt to answer this question, James Boyce highlights the tension between two pieces of communication in 1836 from the Secretary of State for the Colonies, Lord Glenelg. In the first letter, to the Governor in Tasmania, Glenelg clearly rejects the Batman project on grounds of established policy, noting that unlicensed settlement "exposed both natives and the new settlers to many dangers and calamities" and it should be restrained.

Yet a few months later, in a letter to the Governor in Sydney, Glenelg adopts a quite different tone. This letter celebrates the achievements of English industry in the two established Australian colonies of the time, having in the past half century "converted unproductive waste into two great flourishing provinces."

Commenting on the unauthorized settlement at Port Philip, Glenelg suggests, "It is perhaps inevitable that the sanguine ardour of private speculation should quicken and anticipate the more cautious movements of the Government" - thus giving passive license to the expansion of settlements. The NSW Legislative Council then placed the regime of the squatters on a more official footing later in 1836.

As has so often been the case in Australian history, matters of principle were overwhelmed by economic interest. The idea of justice embodied in natural rights is easily voted down by its utilitarian competitor - the brand of justice made in the image of the majority.

The treaty-making traditions of the United States, Canada and Aotearoa / New Zealand have been resisted in Australian law, and although we may thereby have avoided our own history of dishonoured treaties, that can hardly be counted a moral victory. On the contrary, even given their colonial ambitions, the "Clapham Sect" reformers and their peculiar synthesis of natural rights and theology might have provided better legal foundations than we have today.

Certainly, from a theological perspective, the discourse of modern human rights can be too abstract and too individualist unless it is linked with strategies for actually restoring social relationships. But it would be manifest nonsense to resist the legal establishment of economic, social and cultural rights of Indigenous peoples on the grounds that the whole discourse of human rights can be invalidated by its individualism, or perhaps by judicial activism that exceeds the imagination of parliaments.

When it comes to Aboriginal and Torres Strait Islanders, there is very little evidence that Australian parliaments have reached the level of moral imagination that even the Colonial Office did in the 1830s.

One of the distinctive features of current postcolonial theory is that it recognizes the hybridity of settler societies today and does not seek an impossible restoration of native origins. This kind of realism does not however imply a resignation about the past, but rather, a resolute commitment to the ongoing negotiation of complex identities and solidarities, including the dynamic Indigenous polities of Australia.

Far from the relativist and fragmented postmodernism that provides no motivation for substantive conversation, a postcolonial redemption would seek to restore interwoven networks of solidarity, including a shared sovereignty with the polities of the First Nations. Reviewing his long experience in advocacy of reconciliation, Patrick Dodson has recently issued a clarion call:

"If, as a nation, we are able to conduct ourselves with courage, love and integrity in the dialogue before us, then the nation will be well served and future generations will not be left wondering why our courage was so lacking that we were unable to confront the truth of our history and to deal with that truth accordingly."

Edward Said articulated this kind of challenge with his characteristic acuity:

"Every identity therefore is a construction, a composite of different histories, migrations, conquests, liberations, and so on. We can deal with these either as worlds at war, or as experiences to be reconciled."

In the theological terms arising from the priestly traditions of the Hebrew Bible, the most comprehensive divine covenant or treaty (the berit with Noah in Genesis 9) provides protections for all life on the planet, human or otherwise, after which comes the covenant of many nations (Genesis 17).

The apostle Paul, it should be noted, derived his communal politics from the multicultural heritage of Abraham, rather than from the national theology of Moses. In this respect, the Jewish Paul read his scripture as a Gentile.

The faith traditions descended from Abraham have all, in different ways, affirmed that the rights of life, liberty and property are endowed by their Creator, and these rights are still defensible with strenuous effort even in all-too-human contexts like the United Nations. The UN Declaration on the Rights of Indigenous Peoples can rightly prise open the secular trinity of state, sovereignty and jurisdiction.

Instead of adopting an idolatrous confidence in the tides of Australian parliaments, faith communities now have a calling to go beyond the colonial activism of the Clapham Sect to postcolonial engagement with Aboriginal and Torres Strait Islanders.

For the dominant culture, this necessarily entails making space for other polities between the individual and the state.

Mark Brett teaches biblical studies and ethics at MCD University of Divinity.