December 2021 – January 2022

Comment

The truth about truth-telling

By Megan Davis

The Sea of Hands, representing support for reconciliation and the rights of Indigenous Australians. © Joel Carrett / AAP Images

Revisiting trauma is not the road to justice for Aboriginal people

It is rather odd that in Australia, unlike the rest of the world, there is a naive belief that truth comes before justice, truth comes before a treaty, and justice will follow the truth.

I have often wondered whether this old-fashioned thinking is because the last time Australia intellectually wrestled with the concept of reconciliation was in the 1990s. The Council for Aboriginal Reconciliation’s work was, after all, during the heyday of “transitional justice”, the term used for the global theory and practice that underpins reconciliation work. Its time coincided with the South African Truth and Reconciliation Commission, and there was much cross-pollination of ideas about reconciliation, however Australia exited the truth and justice space when the council folded. In the intervening decades, the world has wised up to the pretentious promises of transitional justice.

“Transitional justice” emerged in the ’90s in Latin America as countries transitioned from civil wars and dictatorships to democracies. Some say the genesis of transitional justice was in ancient Athens or Nuremberg. Regardless, for nation-states to move forward and manage the enmities of the old regime – the killings and disappearances, and gross violations of human rights – the theory is that there needs to be a public ventilation of what happened, the “truth”, to allow the victims of the old order to reconcile with the perpetrators and together transition to the new. 

It also involved education, so the community could have a shared understanding of what happened, why it happened and how it might be prevented from occurring again. As a field of practice and scholarship, it has yielded much literature, many academics, many research projects and many experts well-rehearsed in the conventional methodology of ascertaining truth – a commission of inquiry.

Yet it is also an enterprise that is increasingly subject to criticism. The model generally employed has become a manifesto for maintaining the status quo: a means to make unspeakable wrongdoing and gross human rights violations comprehensible, yet in effect fit them into the status quo. Although modern transitional justice folk insist they have learnt from the flaws of past truth commissions, which commonly offered impunity for perpetrators and meagre reparations (or none) for victims, these processes do not disrupt or change state structures.

Irish sociologist Lea David refers to the phenomenon of uniform transitional justice models as “moral remembrance”:

Moral remembrance prescribes standards for a “proper way of remembrance” with which states are expected to comply when dealing with legacies of mass human rights abuses. It refers to a standardised, isomorphic set of norms, and is based on normative worldviews of human rights that promote “facing the past”, “duty to remember” and “justice for victims” as its pillars. Moral remembrance points to the current preference, worldwide, for memory standardisation, institutional homogenisation and norm imitation. It provides a technocratic-like set of policies and a tool kit of practices that aim to advance a human rights vision of memorialisation processes …

David argues that this standardisation of reconciliation, via “truth”, has been “generally ineffective at best and counterproductive at worst”. The South African Truth and Reconciliation Commission is routinely held up in Australia as an exemplary model. But the assessment in South Africa and elsewhere is far more nuanced and critical. The recent public outcry in South Africa about the TRC’s renovation of perpetrators’ reputations, following the death of former president F.W. de Klerk, is a testament to that. South African lawyer and scholar Tshepo Madlingozi, for example, argues the TRC “continued a conquest of knowledge”, and that “victims’ pain was appropriated for elite reconciliation, for politicians to reconcile”. Madlingozi is critical of the peddlers of transitional justice, referring to its processes as “epistemicide”, meaning it represents “the killing of Indigenous knowledge, the killing of other people’s way of understanding the world”.

One of the sources of disgruntlement and frustration is how rarely the justice requirements − what does repair look like? − follow the truth-telling, and how little changes in power relations.

Part of the problem is that such processes require a victim to remain a victim. And even so, writes Lea David in her book The Past Can’t Heal Us, the victim groups’ recognition and inclusion in infrastructures of their own nation-states after the truth process is not guaranteed. This aligns with the First Nations critiques in Canada of truth-telling: these processes have not elicited any significant shift in attitudes or power relations with the state. And they have neither brought Indigenous justice nor shifted the state’s preference for ritualism and performance. These various critiques are saying resolutely that justice does not follow the truth.

Athabascan scholar Dian Million says these commissions “are a product of our age, an age of human rights, global violence, mass media and neoliberalism”. In Therapeutic Nations, Million examines the way Indigenous peoples’ trauma and healing is now co-opted by the state and detached from broader Indigenous political goals for self-determination. With reference to the Truth and Reconciliation Commission of Canada, Million sees the state as:

… moving the focus from one of political self-determination to one where self-determination becomes intertwined with state-determined biopolitical programs for emotional and psychological self-care informed by trauma. In this context, well-being, physical and mental health, is articulated as a key component for human development within self-determination goals at the same time an autonomous self-determination is left vague and poorly defined. With the establishment of the TRC, Aboriginal peoples seem to become the subject of a humanitarian project.

Million’s critique is a powerful one. She observes that “the international law that enables Indigenous trauma to appeal for justice is the same sphere in which we articulate political rights as polities with rights to self-determination”, but that these are not inevitably “compatible projects”. 

Million captures the discomfort of many First Nations people following the Uluru Statement from the Heart, as allies ran off on truthy jaunts with truthy projects, well ahead of the mob. Before the Uluru statement, the language of truth and truth-telling barely featured in the nation’s narrative. After it, truth-telling is exigent, yet entirely detached from the political ask.

Take note of those who are spruiking truth without constitutional voice. Notice who is not advocating for political power and structural reform. 

We have been here before, and we should see through the preference of those in power for performative storytelling over long-awaited and much-needed structural change. It’s why in the ’90s we got the Council for Aboriginal Reconciliation instead of Treaty. The pithy tagline for the Uluru Statement from the Heart – “Voice, Treaty, Truth” – in some ways invited this. It gives the false impression that change is an à la carte menu and one can simply pick what suits, even though these three proposals are connected, meaningful and not interchangeable. The reform is Voice: Makarrata.  

Truth-telling must be bottom up, led by First Nations in their communities. The vision of truth determined by the First Nation Regional Dialogues, which led to the Uluru statement, captured this dynamic: localised and featuring understandings of a shared history within communities. Few wanted a framework or institution to regulate this activity. The notion of a commission to animate the process of Makarrata was supported, but communities would still decide whether they want to connect to this, if at all.

Historian Penelope Edmonds has studied the multitude of truth-telling activity across the continent and believes “locality is key because so many individuals and communities are wary of attempts at reconciliation led by the government”, as such processes are “state-based and top-down” and can be “repressive and reinforce colonial hegemonies”.

There have been so many wonderful examples of local truth-telling. A recent one is the Carrolup Elders Reference Group and its Centre for Truth-telling. The work done to repatriate, safeguard and celebrate the whimsical paintings of the Carrolup Nyungar children, who were part of the Stolen Generations, is extraordinary. A Makarrata Commission would step lightly into this space and be guided by First Nations.

At an institutional level, Victoria has the most advanced treaty process in Australia and may deliver an alternative Indigenous vision for the nation and the globe. To negotiate a treaty, it had to do what the Uluru statement contemplates and create a political Voice first: this pioneering Voice is known as the First Peoples’ Assembly of Victoria. The assembly advanced its treaty negotiation framework and, on the advice of communities, has now established the Yoo-rrook Justice Commission. (Yoo-rrook being a Wamba Wamba / Wemba Wemba word meaning “truth”.) The Tyerri Yoo-rrook (“seeds of truth”) Report set out the way First Peoples want the commission to interpret its mandate, declaring a determination to pursue “truth and justice”. The “and justice” is a valiant commitment, because it has been a Sisyphean task for any Indigenous nation to push past the truth-telling to see justice implemented.

Australian history is replete with examples of the Commonwealth detaching justice outcomes from “truth”. The original title for the Council for Aboriginal Reconciliation, established by statute in 1991, was the Council for Aboriginal Reconciliation and Justice. The prime minister’s political advisers cut loose the word “justice”. In the early ’90s, after the High Court of Australia handed down its Mabo decision, the “justice” component of the political response was never implemented. And when the reconciliation council delivered its findings to John Howard in 2000 after a decade of work, the justice recommendations were entirely rejected. Substantive constitutional recognition featured in all of these proposed justice frameworks.

Allies tend to cast aside the justice components of the Aboriginal struggle because they don’t want to be political – they want to be safe. But even Australia’s own homegrown, corporate-active-citizenship version of reconciliation – Reconciliation Australia, the non-government organisation established by the reconciliation council – says it is time for the nation to move from “safe to brave”. If we as a nation cannot be brave and demand structural change now, we will have allowed the co-opting of First Peoples’ trauma by the state in order to marginalise our political and legal claims.

The idea that truth automatically will lead to justice is fraught. It is illusory. It is an ahistorical belief that is simply not borne out by the evidence. It defies the demands we have made as Aboriginal people for rigorous evidence-based thinking and public policy in Indigenous affairs. Beware the ally spruiking truth.

Megan Davis

Megan Davis is a Cobble Cobble woman from Queensland, a pro vice-chancellor and professor of law at UNSW, and a member of the Referendum Council.

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