Reform: Pay the Rent

21 Jan 2019

We cannot mature as a country if we do not acknowledge this damage and the responsibility of the nation to implement reform that encompasses restitution.

Whilst I wholeheartedly reject any notion of a national day of celebration on January 26 as it is our National Day of Mourning (since it was declared in 1938), I don’t support changing the date because the message is lost once again if we continue to accept tokenistic gestures.

We require meaningful reform that addresses human rights in this country; reform that goes further than symbolism or recognition of our history in a racist constitution by implementing treaties that enshrine protective mechanisms for our people; reform that allows for reparations and self-determining communities, land rights and the revival of our languages.

Throughout my Reform series, I will tackle each of the above issues but the area of reform that I start this series with is the final part of the reform I am suggesting but I am dealing with it first because it is perhaps the most pressing and controversial at once because I will be impressing upon Australia the importance of paying the rent.

Throughout the study of law, we learn the principles and mechanisms in which those wronged are (in principle) able to receive ‘justice’ and restitution.

In a criminal context, this can be through seeing the criminal justice system appropriately impose sanctions upon the guilty party and the victim is then able to obtain victims’ compensation. In the civil context, it is the entitlement to damages, which are meant to restore the aggrieved party to the position they were in prior to the event that caused loss. Additionally, there is an entire body of law (equity) concerned with remedies in the event that a civil remedy is not available or adequate.

What does this mean then, to the people who are the most aggrieved on this continent?

At the time of invasion, the British Crown claimed the land under a racist application of the doctrine of terra nullius. In 1768, Lieutenant James Cook was instructed,

‘with the consent of the natives to take possession of convenient situations in the country in the name of the King of Great Britain, or, if you find the country uninhabited take possession for His Majesty…’

In 1770, Cook attempted several landings all along the eastern coast of Australia and on multiple occasions, the landing parties were repelled. Cook wrote in his journal in 1770,

‘..from what I have seen in the Natives of New Holland, they may appear to some to be some of the most wretched people on Earth..’

So began the racist lie of terra nullius. Our people were viewed as less than, despite a sophisticated culture that had sustained the ecosystem since time began, had environmentally appropriate agricultural practices and trade routes in place with geographically proximate neighbours.

The acts of Cook and the Crown by extension, were particularly heinous given that possession of this land was in contravention of English law. Their law stated that land could only be acquired in one of three ways:

  1. Settlement – where territory is uninhabited and the ‘settlers’ brought English law with them;
  2. Conquest – where territory was inhabited and the native laws survived provided they weren’t discordant with laws of the crown; or
  3. Cession – where the territory was inhabited and the sovereignty was ceded to the Crown and the applicable law would be determined by agreement, but in the absence of any agreed changes, local law would continue to apply.

The prevailing legal doctrine is that Australia was ‘acquired through settlement’ despite the presence of an Indigenous population because the English common law contained a definition of ‘uninhabited lands’ which considered lands uninhabited if they contained peoples ‘uncivilised’ by the 18th century English norms.

The theft of this land was predicated on the ethnocentric notion of the Indigenous population’s inferiority.

The First Nations people continue to suffer the transgenerational effect of invasion, dispossession, incomprehensible violence, including sexualised violence, infanticide, torture and massacres. Through calculated policies based on the sociological falsehood of white superiority, First Nations people were subjected to policies that punished the practice of language and culture by removing children and teaching them how to be white Catholics and this cultural genocide has never been redressed.

Why not?

Besides racism and continued colonial denial? The complexity of legal nullity.

Australia is a colony of the United Kingdom, accordingly, our commonwealth laws are derived from the English laws and have developed their own somewhat unique identity over the course of time. These laws however, have never gone beyond acknowledging that terra nullius was a legal falsehood – which was the triumph of the Mabo case.

They have not delved deeper to consider the illegality of possession over this land because there is an internal conflict. In order to acknowledge the truth of the erroneous basis upon which the Crown took possession, the Courts would render themselves void.

This legal convolution, coupled with the generalised refusal to acknowledge the racist formation of this nation by successive governments, presents a problem requiring careful legal navigation by First Nations people, which is regularly undermined by changes at law by the government to undermine any legal gains achieved over time.

With the Mabo victory and Native Title legislation, came the rhetoric from John Howard that caused a greater divide between Indigenous and non-Indigenous Australians, which presented a disingenuous outlook of the implications of the legislation in order to solidify his support in winding back the rights granted and compounding the oppression of First Nations communities.

As Luke Pearson stated, ‘colonisation in Australia was not a single act 200 years ago, but an ongoing process that continues to disempower and disenfranchise many who live within it’ and none moreso than First Nations people. The impact of history continues and new ways to oppress are imparted by our government – often with bipartisan support – so the damage continues and compounds.

We cannot mature as a country if we do not acknowledge this damage and the responsibility of the nation to implement reform that encompasses restitution.

The fact is, that the Australian economy has enjoyed a steady increase in value over the last 230 odd years. The initial penal colony, quickly burgeoned a livestock and pastoral empire at the immediate detriment to the Indigenous people. The economy then expanded to include mineral mining and manufacturing with the effects felt not only by the Indigenous people but the environment with mass wildlife shortages where ecological sustainability was not a concept considered by the white ‘settlers.’ The technological era saw increases in mining activity and the service sector with the economy quickly growing in value to over one trillion $US dollars.

The success of the Australian economy is not down to economic management, as the constant political posturing would have us believe, it is because a benefit has been derived from the Indigenous people and cultural lands without any payment.

Accordingly, there is a responsibility to engage in an economic assessment of damages. In common law matters, the first step for forensic accountants in a damages context is by translating the legal theory of the harmful event into an analysis of the economic impact of that event. In most cases, the analysis considers the difference between the plaintiff’s economic position if the harmful event had not occurred and the plaintiff’s actual economic position.

In the context in which an entire people suffered damages, in a variety of degrees, as a result of many different acts carried out, this assessment is nigh on impossible and, frankly, this country cannot afford the exercise let alone what would be deemed to be ‘just’ damages in this context.

Instead we need to examine what we can, which is the value of the land stolen and the revenue derived from the land plus a monetary acknowledgement of the pain and suffering endured throughout the abhorrent acts perpetrated against First Nations people.

While its not practical for me to delve into detailed economic analysis here it is worth while noting that in order to gain any semblance of ballpark of just reparations, the forensic accounting analysis would need to consider the land value (which is currently estimated in the trillions), the wealth derived from the land and there would need to be a calculation that factored in the number of years that Australia has benefited from use of the land. The natural resources that have been sold also need to be factored in.

Perhaps the most important component for First Nations people is the damages for massacres, rapes, child removal, slave labour, trans-generational trauma and environmental damage.

A rudimentary example of the premise of this economic rationalisation would be:

Land + earnings from mineral resources + (interest x 231 years) + non-economic loss

The government would counter this argument by stating that it is simply not affordable however, that argument holds no weight in circumstances where the large corporations who are complicit in the oppression of Indigenous people and capitalisation from the theft of this land pay little to no tax. Were they to pay a fair tax rate like that of other businesses, the governmental pool of wealth would be substantially increased.

Additionally, any compensation fund ought to be contributed to by the religious institutions responsible for much of the damage occasioned upon Indigenous people by being an agent of the government in implementing the White Australia Policy. While categorised as a ‘charitable organisation’ – the Catholic Church is worth over $30 billion in Australia alone and pays no tax.

The above two adjustments of the governmental fiscal policy would ensure there was sufficient funding to not only commence the reform process but establish a reparations fund which – if we are dispensing with tokenism – needs to be presided over by a Council of Elders answerable to their own communities (not the government). These adjustments are substantially less than what a forensic accountant would likely determine to be the true cost of the loss of land, income derived and damage to First Nations people.

This reform – affordable through two fair fiscal policy adjustments – is a reasonable way for this country to pay the rent.

 

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