Storey, Matthew --- "The Stolen Generations: More than Just a Compo Case" [1996] AboriginalLawB 80; (1996) 3(86) Aboriginal Law Bulletin 4

The Stolen Generations: More than Just a Compo Case

By Matthew Storey

`The Stolen Generations are more than those people who were removed under an Aboriginals Ordinance or its equivalent. The Stolen Generations are those Aboriginal people, or their kin, that were removed from their family and often their counttry. They were removed by white authority becauuse they were Aboriginal.Oftten they have not been able to return to their families.'

David Guy: National Workshop Opening Address

The recent lodging by the North Australian Aboriginal Legal Aid Service (NAALAS) of over 560 writs alleging, amongst other things, personal injury may give a false impression of the issues underlying the Stolen Generations. They may give the impression that the issue of removal of Aboriginal children from their families is one of individual compensation on a scale rarely seen in this country.

A careful analysis of the papers presented at the Stolen Generations National Workshop and the subsequent workshop discussions and recommendations will reveal the superficiality of such an impression. Whilst an award of compensation is one aspect of the struggle of the Stolen Generations, when an intrusive colonising people set about a deliberate and coordinated attempt at genocide against a traditional Indigenous population for a period spanning over a century, the consequences of their actions will not disappear with a simple monetary payment. Rather, the consequences will have a profound effect, not just in municipal and international law, but perhaps most significantly, on the Indigenous culture itself, and on its interaction with the intrusive colonising culture.

The Stolen Generations' struggle for justice raises these issues. The National Workshop held in Alice Springs on 4 to 6 September 1996 commenced the process of analysis of the issues raised and the development of strategies to address them. An important aspect of the process of analysis and strategy development lay in the fact that the Workshop was a national one.

A national issue

The history of the Stolen Generations is a national history. The genocidal policies of removal and the assimilationist theoretical underpinnings were approved at national meetings of Commonwealth and State Aboriginal Affairs ministers. The missions that encouraged and implemented these policies were often nationally based, and national conferences of mission organisations were frequently held. Today, these national similarities continue in the operation of welfare and juvenile justice systems which, although State based, have similarities in conceptual bases and operational effects that transcend jurisdictional boundaries.

These historical bases and contemporary realities are a denial of the approach taken by various governments and non-government organisations that have attempted to `pass the Stolen Generations buck'. State governments have blamed Commonwealth policies, the Commonwealth blames State practices, the Churches claim they were merely innocent agents of someone else's schemes. Evidence of this can be clearly seen in many of the submissions to the Human Rights and Equal Opportunity Commission's National Inquiry Into the Separation of Aboriginal and Torres Strait Islander Children From Their Families.

The history of the Stolen Generations is however a history of one people, their legislatures, administrations and courts, their religions and intellectuals, implementing a consensually agreed program of genocide upon another people. English criminal law places collective responsibility upon parties to offences. International human rights law does not accept a `following orders' defence to human rights violations. Similarly, the heirs to the policies of genocide should find no refuge in jurisdictional or administrative boundaries. Assimilation was, and still is, a national disgrace. Its ongoing effects require national solutions.

The rationale behind the Stolen Generations National Workshop was to recognise this and to overcome the regionalism that has characterised Aboriginal input to the National Inquiry (and, indeed, most responses to the issue of the Stolen Generations) to date. The Workshop attempted, rather, to identify those issues which members of the Stolen Generations had in common wherever they were from and wherever they ended up.

The processes and outcomes of the Workshop are themselves evidence of the appropriateness of this approach. The extent of uniformity of recommendations stemming from State based workshops and the degree of cohesion amongst Workshop participants are a vindication of a national perspective. When a group of people, organisationally unconnected, can agree on a common future political program, it is an indication of their shared political needs.

Land and culture(s)

While the National Workshop addressed a number of issues, the right to land is the central issue for many of the Stolen Generations. It is also one of the most theoretically challenging. Rights to land for the Stolen Generations is a matter which at its core questions many common assumptions underlying current (implicit or explicit) thinking regarding definitions of `Aboriginality' and `tradition'. Because of this, it is also an issue which, more than many others, highlights the fact that reconciliation for the Stolen Generations requires reconciliation with both the non-Aboriginal and Aboriginal communities.

Acceptance of a right to land for the Stolen Generations involves a recognition that current inquisitorial systems of determining `traditional' status create an inherent bias towards those people fulfiling white stereotypical expectations as to `true' Aboriginal tradition. Acceptance of the right also involves a fundamental challenge to the predominant presumption that a right to land is based on the extent of maintenance of pre-colonial tradition. Rather, a right to land in the view of the Stolen Generations demands acceptance of the notion that this right is inherent in a person's Aboriginality. It demands an acceptance of contemporary cultural practice as Aboriginal tradition.

The fact of the evolution of traditional culture under the impact of European intrusion is not unknown in land rights jurisprudence. Perhaps the most well known Australian pronouncement on the matter is (now Chief) Justice Brennan's in Mabo [No. 2]:

`Of course in time the laws and customs of people will change ... But so long as the people remain an identifiable community, the members of whom are identified by one another as part of that community living under its laws and customs, the communal native title survives' (Mabo v Queensland [No. 2][1992] HCA 23; , (1992) 175 CLR 1 at 61 per Brennan J).

Similarly when the Full Bench of the Federal Court was considering the foundation of descent groups under the Aboriginal Land Rights (NT) Act 1976 (Cth) it was noted:

` ... there is no reason the particular principle of descent traditionally operating may not change over time' (NLC v Aboriginal Land Commissioner [1992] FCA 69; (1992) 105 ALR 539 at 554-555).

The conclusion that land rights remain despite the evolution of traditional culture and fundamental changes has also been reached in other jurisdictions. (See in particular Hamlet of Baker Lake v Minister for Northern Development (1979) 107 DLR (3d) at 527-529. The case is referred to by Toohey J in Mabo [No. 2] at 192. See also the other references cited by His Honour at note 32 on that page.) The introduction of Christianity to a peoples (Mabo [No. 2]) and the transformation of a nomadic community to a sedentary one (Hamlet of Baker Lake) are two such examples of fundamental turning points in a society's culture. The perpetration of an attempted act of genocide is another.

Thus, there may not appear to be any theoretical challenge to the recognition of land rights for members of the Stolen Generations. But theoretical complexity arises when it is recognised that it was not (necessarily) the entire population of communities that was removed under the assimilationist policies. Rather, selected Aboriginal people were removed. These selected removals, while affecting all people within a community in some way, will have had differing particular effects depending upon whether a person was themselves removed or stayed as part of the remnant community. The evolutionary effect upon tradition will vary with the particular experience of each individual.

Accordingly, the possibility of co-existing, but differing, Aboriginal cultures, each with connexion to the same land, arises as a result of the attempt at genocide. The response of white legislatures to these co-existing cultures has been to privilege one with the adjective `traditional' and to endow it with the increased possibility of legislated land rights.(The processes through which this occurs are discussed in Vince Forrester's paper `Land Rights Legislation: Safeguarding Occupation or Redressing Dispossession?' given at the National Workshop.) This identification of the remnant community's culture as `traditional' can apparently operate irrespective of any other objective (or subjective) change the culture may undergo.

It would appear that white authority is unable to comprehend the possibility of divergent Aboriginal cultures, because, inevitably the identification of the remnant community's culture as `traditional' denies the possibility of the co-existing Aboriginal culture also being recognised as such. Often this difficulty is compounded by white authority referring to the remnant community culture (if it refers to Aboriginal people at all) for verification of the `traditional status' of individuals. Such a reference is problematic not only because the individuals referred to may have no knowledge of the co-existing culture, but also because there may be financial incentives in denying the legitimacy of the co-existing culture.

Indeed, the co-existing culture often struggles to be recognised by either white authority or the remnant community culture as being `Aboriginal' at all. This is despite the fact that the life experiences that lead to the development of this co-existing culture, the removals, are above all a uniquely Aboriginal experience.

The apparent inability of white authority to recognise the co-existing culture as Aboriginal is apparent with respect to the provision of many services, not just the right to land issue. It is commonplace for service delivery models to be based on an entrenched perception of an homogeneous Aboriginal culture. Services based upon the recognition of a divergence of Aboriginal cultures are often seen as `unnecessary duplication'. It is this misconception that underlies the struggle of the Stolen Generations for access to many services such as archives and counselling. It is an attitude that is increasingly obvious in the comments of the current Commonwealth government. (The Commonwealth government's submission to the National Inquiry does not recognise that the needs of the Stolen Generations differ from those of other Aboriginal people.)

Resolutions?

This analysis of the position of the Stolen Generations raises a number of fundamental questions. If one accepts the fundamental Aboriginality of the culture(s) of the Stolen Generations, what is it that leads to the privileging of the rapidly-evolving remnant communities culture(s)? Is it appropriate to refer to the individuals that are the repositories of the remnant communities culture(s) for verification of the status of the co-existing Aboriginal cultures? Finally, these theoretical questions need to be resolved by both the non-Aboriginal and Aboriginal communities in a moral context that recognises that the members of the Stolen Generations are the survivors of an attempt at genocide that was perpetrated in this country as recently as the last few decades.