Justice-Seeking in Settler States: A Model for Thinking about ‘Justice’ in Transitional Societies

Chapter 6
Justice-Seeking in Settler States: A Model for Thinking about ‘Justice’ in Transitional Societies

Michael Phillips

In transitional justice studies the question of justice is often, and for good reason, conceived of as one involving trade-offs between justice and other important values, such as peace, stability and truth.¹ Some scholars have attempted to square the circle by arguing that criminal justice, for example, ultimately contributes to a stable peace.² Other scholars, such as Jeremy Webber, have tried to give a nuanced account of the internal structure of the concept of justice itself, and in doing so have clarified the way in which justice claims, although advanced under the same label, may take rather different, and at times conflicting, forms. In this chapter I argue that it is also helpful to think of justice in terms of the activity of justice-seeking, an activity defined by two key features: the making of justice claims, and the resolution or determination of those claims. Indigenous peoples’ claims for political or constitutional justice are first order justice claims insofar as they go to the identity of indigenous peoples as political constituencies, and hence to their ability to make, waive and settle other justice claims, such as rights to land and self-government, through agreement with the state. At bottom, this means that transitional justice mechanisms in settler democracies should be structured in ways that enable indigenous people to participate in those processes as political constituencies, with the right to be consulted and to enter into agreements with the state on matters affecting their key interests. It follows that the agenda of reconciliation must extend beyond ‘hearts and minds’ to issues of treaty rights, native title and self-determination and related issues. My focus in this chapter is particularly on Australia in comparison with New Zealand and, to a lesser extent, Canada.

Outline

Jeremy Webber’s article on the ‘forms of transitional justice’ provides a useful starting point for my discussion of justice in this chapter. Webber distinguishes three different conceptions of justice evident in arguments about transitional justice – ‘retrospective’, ‘prospective’, and ‘the adjustment of contending legal and political orders’. Retrospective justice is the form of justice most readily understood within liberal polities, and derives from Aristotle’s concept of ‘corrective’ or ‘rectificatory’ justice.3 Prospective justice is a broader form of justice invoked when the parties ‘are concerned not simply with repairing past events but rather with changing their society for the future, reconstructing it on different – and, ideally, more just – foundations’. Prospective justice ‘tends to be the very essence of transition. The parties seek to arrange relations within society so that each party is treated appropriately from now on’.⁴ Prospective justice has affinities to restorative justice, such as the need to repair and maintain a community into the future.⁵ This is most evident in truth commissions, but also in official apologies, which ‘are designed not to fix the past, but rather to repudiate it, dissociating the current regime from the past and making clear that the new regime intends to base its actions on new principles’.⁶

Webber describes a third form of justice invoked in the transitional justice literature as the ‘adjustment of contending legal and political orders’. This form of justice goes to ‘the framework within which justice is to be done’.⁷ It involves a determination of the boundaries of the society and its membership. It may also include questions regarding the localization of justice into a particular vernacular, described by Webber as ‘a set of terms, concepts, exemplifications, and points of reference’.⁸ Included here are questions regarding the constitutional make-up of the state, including questions of secession, federalism and regional autonomy. Indigenous claims to land, often expressed and understood in terms of retrospective justice arising out of a prior wrong, namely dispossession, are also often claims to autonomy and fall within this third form of justice.⁹

To press Webber’s point further, one implication of his view that justice claims may extend to claims made between legal and political orders is that such claims are potentially unsolvable on a conceptual level. This is because there is no third reference point of adjudication between the contending orders except if the parties agree to one, but it is precisely such agreement on common reference points that is missing. This is true of debates about the effect of legal documents, such as the Treaty of Waitangi, drafted in more than one language. This is an illustration of the larger problem that in conditions of cultural pluralism different persons and groups are likely to frame justice claims differently in response to their different experiences and normative expectations, themselves derived from their own cultures, history and politics. Hence Andrew Sharp, author of Justice for the Maori, has observed that ‘there can be no permanent settlement of particular cases or agreement on conceptions of justice. The content of justice is contingent on what particular societies take to be good for people and what activities are being considered’.10 This extends to claims for reparative justice because of the ‘presence of fundamentally distinct and competing ethnic conceptions of what things were (and are) wrong and as to how individual and group identity and responsibility for actions persist through time’.¹¹

The presence of a wider claim regarding what Webber has termed the adjustment of legal and political orders is likely to make resolution of other justice claims impossible on a conceptual level. Putting aside the use of force or structural violence, in such cases justice claims may only be waived, set aside, or determined in a manner that the claimant and the object of the claim regard as acceptable, or not. In settler democracies, transitional justice mechanisms should be structured in ways that, as far as practically possible, give institutional shape to this claim. This implies that transitional justice mechanisms in settler states must go beyond truth commissions and compensation packages, and should include processes which allow indigenous peoples to participate as political constituencies with the right to make decisions and reach agreements with the settler state on matters affecting their key interests. I will return to this matter below.

Implicit in this argument is a view of justice as a form of activity constituted by the making of claims by justice-seeking subjects. One of the most notable aspects of justice-talk is its ready accessibility and wide use in political and legal debate by ordinary people acting without philosophical or legal training. For most people, justice is not a philosophical term of art, but a claim to fair and proper treatment derived from an experience of human life that offends existing normative expectations.¹² That is, the universality of justice might be located not in its meaning but in the way in which it is deployed by justice-seeking claimants, or in the technical language of political sociology, ‘subjects’.¹³ On this view, the experience of injustice is prior to the claim for justice.¹⁴

Justice claims arise out of real human experience and specific social, political and economic contexts, and are therefore highly localized, even when expressed in universalist terms. An element of such universality is a second claim standing behind the first claim. This is the claim that the claimant is entitled to have their claim answered and, ultimately, resolved by a legitimate authority.15 Claims going to the identity of that authority are a special kind of justice claim, and are most recognizable in claims by indigenous peoples to sovereignty, in the exercise of which they claim to be entitled to determine other justice claims. Not all claims reach this last point of abstraction, but some do, and it is important to recognize them as such. In this chapter I call these claims ‘political’ or ‘constitutional’ justice claims, and they substantially overlap with the content of Webber’s third form of transitional justice, described by Webber as the ‘adjustment of contending legal and political orders’.

For example, under Australia’s native title regime indigenous claimant groups must demonstrate title to land under Aboriginal customary law, that their title has not been superseded by an inconsistent act of state such as a grant of freehold over the land, and that the claimant group has maintained its connection to the land in question to the present day. Although the acquisition of sovereignty by the British Crown is not justiciable in Australian law under the ‘act of state’ doctrine, this formulation of the structure of native title points back, ultimately, to Aboriginal law as the source of native title. In turn, this points to the existence of Aboriginal peoples as politically organized constituencies with the right to make, litigate, waive and settle justice claims in respect of native title. In that sense, when indigenous peoples make native title claims they are also making a first order claim that they are political constituencies with rights derived from Aboriginal law and prior occupation and as such are entitled to both assert and settle other justice claims. As I argue below, the right to settle claims on terms acceptable to the claimant group is as important as the right to assert the claims in the first place, and supports the common practice of resolving native title claims through agreement rather than through litigation and judicial determination. A similar logic applies to other justice claims made by indigenous peoples as such, including rights to self-government, to cultural heritage and access to minerals and development. Such a claim is also recognized whenever the state engages with indigenous peoples in treaty negotiations directed at the resolution of these matters.

Political or constitutional justice claims are not always prior to other forms of justice claims. Much will depend on context. In many cases such claims will not arise, or will have already been answered. However, at least in the context of transitional justice processes in settler democracies, political or constitutional justice claims are first order justice claims because settler democracies are built upon the political exclusion of indigenous peoples, through various forms of dispossession of both land and the power of self-government, either absolutely (as is the case in Australia) or through violation of treaty rights (as in the case of New Zealand, Canada and the United States). In my view, this means that transitional justice mechanisms in settler democracies must be structured in ways that allow indigenous peoples to participate as organized political constituencies, with the right to make second order justice claims, and to enter into agreements with the state on the resolution of those claims. Typically, this will involve some kind of treaty process directed to agreement between indigenous peoples and the state on land rights, cultural heritage and various forms of self-government, and to the relationship between such treaty rights and liberal citizenship rights, such as rights to health, education and welfare as well as civil and political rights.¹⁶

Transitional Justice in Settler Democracies

There is a debate in the literature about whether the field of transitional justice extends to transitions within ‘advanced’ or ‘consolidated’ democracies. Hansen, includes ‘consolidated democracies’ in his differentiated theory of transitional justice,17 and lists Australia, Canada, New Zealand, Germany, and Belgium as consolidated democracies that have engaged in some kind of transitional justice process.¹⁸ According to Hansen, limiting transitional justice to societies in a state of radical change ‘implies a moral differentiation’ where poor countries are seen as having endemic human rights problems whilst rich Western countries ‘are implied to be free of such mess and only have a need to come to terms with practices that took place in a relatively distant past’.¹⁹ In other work Hansen has described the process of expansion of the transitional justice field, and noted that truth-seeking and reparations measures in Australia and Canada, though discussed as transitional justice measures, ‘do not seem to aim at achieving a fundamental political or peaceful transition’.²⁰ Hansen argues that such measures are important because they offer the potential to provide redress to victims, even in the absence of a fundamental transition.²¹

Joanna Quinn has observed that the field is ‘more and more home to discussions of transitional justice mechanisms that have been appointed in pre-transitional societies and in those societies that show little evidence of any transition whatsoever’.²² Quinn places Canada in the latter category. The ‘Statement of Apology’ by the Canadian Prime Minister to Canadian Aboriginal peoples for the consequences of the Indian Residential Schools policy, together with the associated compensation agreement, ‘in no way marks a transition of any kind in Canadian society’.²³ One of the key normative questions raised by the use of transitional justice in settler states is whether such mechanisms resolve historic injustices, or whether they contribute to the continuing colonial project of legitimizing settler democracies. This is the key political question identified by Courtney Jung in her discussion of the use of transitional justice mechanisms in Canada. Jung argues that governments may attempt to use transitional justice to ‘draw a line through history and legitimate present policy’ and to ‘reassert their sovereign and legal authority’.²⁴ As Jung also notes, such claims are likely to be contested by indigenous peoples acting both within and without transitional justice mechanisms.²⁵ Whether transitional justice measures legitimate the settler state or have a transformational capacity depends in part, according to Jung, on the wider political context in which they operate.²⁶

Each of these authors problematizes transitional justice processes in settler democracies by questioning whether such states are undergoing a transition, conceived of as a fundamental change in the structure of settler democracies. These critiques of transitional justice in settler democracies suggest that something is amiss. It does not seem right to talk about particular mechanisms as being transitional justice mechanisms where they do not aim at any fundamental transformation. However, the picture looks different if we need to move the focus of inquiry. The debate is better looked at in terms of whether the process adopted includes the kinds of justice claims I have described in this chapter as political or constitutional justice. On that view, the measures commonly described as transitional justice measures in settler democracies tend to be second order transitional justice measures. The really significant activities in these countries are happening not so much within truth and reconciliation commissions as in the field of land rights, self-government and treaty making. These processes are transitional justice initiatives in so far as they are animated by what I have described in this chapter as claims for political or constitutional justice, or in the terms used by Webber, they are claims for the adjustment of contending legal and political orders.