Social and legal alienation: The case of aboriginal peoples in Canada

The concept ‘alienation’ has become a relatively common expression in contemporary society, the usage of which often belies the varied meanings it has had historically and in contemporary literature. Using the sociology of knowledge, an historical analysis of the use of ‘alienation’ in law, the social sciences, and religion reveals a rich and varied tradition. ‘Alienation’ arose with a positive religious meaning and subsequently became a cornerstone for the new property rights of an emerging capitalist economic order. In this new industrial order, social critics gave a negative meaning to ‘alienation’ that became the basis for the social scientific concept. The legal freedom to alienate property has arguably led to the marginalization of certain segments of society. A specific example of this process can be found in the struggles of Aboriginal peoples against their colonizers. Through the process of legal alienation, Aboriginal peoples lost not only their land, but their culture and self-worth. In recent years, Aboriginal peoples have attempted to reduce their social alienation through a variety of de-alienation strategies, including social, political, and legal struggles. One tactic has been land claim litigation. Therefore, through efforts to obtain legal alienation of land, Aboriginal peoples strive to reduce their social alienation and oppression.     

Rhythms of Law: Aboriginal Jurisprudence and the Anthropocene

On 1 December 2019, over one hundred Aboriginal nations performed ancestral and creation dances in synchrony across the Australian continent. One of the communities that danced was the Anaiwan nation from the north-eastern region of New South Wales, Australia. Since 2014 I have been working with Anaiwan people in a collaborative activist research project, creating and maintaining an Aboriginal community garden on the fringes of my hometown of Armidale as a site for land reclamation and decolonising, multispecies research. The community garden is adjacent to the site of the old East Armidale Aboriginal Reserve, where over one hundred dispossessed Aboriginal people were forced to live on the municipal town garbage depot in the mid-twentieth century. This paper positions both the Nation Dance 2019 movement, and the Armidale Aboriginal Community Garden, as rhythmic events that activate Aboriginal Law and sovereignty that is held enduring in the land but that has been buried alive by the settler-colonial state. Focusing on the tensions between deep Indigenous ancestral temporality and colonial territoriality, I argue that the emergence of the Anthropocene reveals a dangerous dissonance between the rhythms of Aboriginal Law patterned through present-day Australian environments and the grid-based structures of colonial governance imposed upon them.

     

Frauds and fakes in the Australian aboriginal art market

This article examines the topic of problematic art in the Australian Aboriginal art market. For Aboriginal people art plays an important social, economic and political role. It has also become a major source of income for many. Thus when the integrity of that art is challenged by allegations of fraud and deception it is imperative to explore the veracity of these claims and the responses made to them. In the article particular attention is devoted to those responses made through both the Australian criminal and civil systems of justice. This analysis shows that there are special problems associated with establishing the authenticity of Aboriginal works of art which tend to hamper the prosecution of fraud cases while a dearth of expertise and interest in art fraud at large among Australian law enforcement bodies is a further barrier to effective action. The conclusion is reached that at present the Australian legal system is poorly equipped to deal with frauds and fakes in the Indigenous art market—a situation which will take time and more imaginative solutions to remedy.     

Colonialism and the health transition: Aboriginal Australians and poor whites compared, Victoria, 1850–1985

This paper presents the results of the first two longitudinal historical cradle-to-grave datasets constructed in Australia: the Aboriginal population of the state of Victoria, reconstituted backwards using genealogical research and vital registrations, 1835–1930; and an impoverished European population born at the Melbourne Lying-In Hospital, 1857–1900 and traced until 1985. It investigates the hypothesis that the health transition in indigenous people was different from that of the dominant non-indigenous population. Both of these studied sub-populations were highly stressed, resulting in high infant mortality and persistent tuberculosis mortality. The Aboriginal population suffered the additional burdens of racism and social exclusion, even though after the passage of the 1886 ‘Half-Castes Act’, the majority of Aboriginal Victorians were legally ‘white’. The impact of that legislation and the systematic exclusion of Aboriginal Victorians from federal entitlements in the twentieth century sent the Aboriginal health transition into reverse. The contrasting fates of poor whites and ‘unofficial blacks’ during the health transition demonstrate the health burdens of inequality and racial discrimination, and reveal that ‘the gap’ in life expectancy between Indigenous and non-Indigenous Australians is a historical product of long-term government policy and exclusion from citizenship and its entitlements.     

Introduction

This paper presents the results of the first two longitudinal historical cradle-to-grave datasets constructed in Australia: the Aboriginal population of the state of Victoria, reconstituted backwards using genealogical research and vital registrations, 1835–1930; and an impoverished European population born at the Melbourne Lying-In Hospital, 1857–1900 and traced until 1985. It investigates the hypothesis that the health transition in indigenous people was different from that of the dominant non-indigenous population. Both of these studied sub-populations were highly stressed, resulting in high infant mortality and persistent tuberculosis mortality. The Aboriginal population suffered the additional burdens of racism and social exclusion, even though after the passage of the 1886 ‘Half-Castes Act’, the majority of Aboriginal Victorians were legally ‘white’. The impact of that legislation and the systematic exclusion of Aboriginal Victorians from federal entitlements in the twentieth century sent the Aboriginal health transition into reverse. The contrasting fates of poor whites and ‘unofficial blacks’ during the health transition demonstrate the health burdens of inequality and racial discrimination, and reveal that ‘the gap’ in life expectancy between Indigenous and non-Indigenous Australians is a historical product of long-term government policy and exclusion from citizenship and its entitlements.     

Some Issues in Aboriginal Justice Research:

The over-representation of Aboriginal people in the Canadian criminal justice system is the context within which the particular case of Aboriginal women is explored. This paper provides an explanation for the incidence and types of crime of Aboriginal women in order to identify the need to better understand the theoretical and methodological issues in the relationship of Aboriginal people to the broader society, in general, and to the criminal justice system is particular.     

Traditional punishment and unexpected death in Central Australia.

Three cases of traditional punishment in Central Australian Aboriginal men are presented in which the thighs were speared or stabbed as part of a "payback" system. In two cases, an unexpected effect of the stabbing or spearing was death due to severing of major leg vessels. The relationship between customary Aboriginal law and general law in Australia has not been clearly defined; however, these cases demonstrate that significant and untoward effects may result from traditional punishments. Pathologists working near traditional Australian Aboriginal communities may still encounter such injuries at autopsy.     

Forensic aspects of aboriginal skeletal remains in Australia

The assessment of Aboriginal skeletal remains and their distinction from whites is an area of major importance to the Australian forensic pathologist. The Aborigines, the indigenous people of Australia, are a distinct racial group with many characteristic anthropological features. The assessment of race is best made from an examination of cranial traits, 20 which are of value. A characteristic pattern of attrition of the teeth provides a method for establishing a skeleton as pre-European contact Aboriginal or postcontact tribal Aboriginal. The limb proportions of Aborigines differ significantly from other races and provide a useful adjunct to other racial discriminants. Quantifiable sex discriminants in the Aboriginal pelvis and femur differ in their ranges of values from other races. The humerus and shoulder girdle are of no value in making a racial distinction and are of limited value in sexing Aboriginal skeletons. Some pathological changes seen in Aboriginal skeletons are of value in corroborating race. These pathological changes include evulsion of incisor teeth, healed "parry fractures" of the ulnae, tibial squatting facets, treponemal changes, and auditory exostoses. The place and manner of burial together with related artefacts, features, and ecofacts may also provide corroboration.     

Kumarangk (Hindmarsh Island) and the Politics of Natural Justice under Settler‐Colonialism

This article examines the impact of the application of apparently impartial principles of procedural fairness and natural justice on the construction of “authentic” and “inauthentic” knowledge of Aboriginal culture. It discusses the progression of the Kumarangk (Hindmarsh Island) court cases and the legal construction of public participation in the making of political decisions affecting Aboriginal interests in land. In examining the politics of competing interests in land, this article reflects on the tension between Indigenous interests in land and settler developmentalism in relation to the Australian jurisprudence of procedural fairness and natural justice. The arguments running through the article concern the questions of the ways in which the liberal restraint on power is embodied in the impartial principles of administrative law, where that power creates rather than infringes upon rights, why it generates a particular legal construction of Aboriginal interests in land and cultural heritage, and the extent to which this plays a role in the maintenance of relations of settler‐colonial dispossession.     

HIV study among pregnant Aboriginal women raises concerns

An unlinked HIV seroprevalence study among pregnant Aboriginal women in BC reveals an alarming trend and raises ethical questions about certain types of research in Aboriginal communities.     

‘Payback’, Customary Law and Criminal Law in Colonised Australia

‘Payback’ is an Australian Aboriginal English term (also known in Melanesia) commonly understood to refer to a vendetta. Satisfaction of a grievance, such as a death or wife-stealing, may be sought through ritual ceremony, gift-giving, corporal punishment and ordeal, or even killing. Such phenomena, often characterised as vendetta or feud, have been noted by non-Aboriginal observers during most of the period of European colonisation (from 1788). In spite of the presumption of sovereignty that recognises only one law, it is shown that the criminal law in Australia has conceded limits to its reach in dealing with payback. More recently we observe that judicial attitudes have tended to recognise the positive functions of certain forms of payback in resolving conflict and upset in communities. Far from being eradicated by colonisation, payback retains a rationality in Aboriginal communities in a country that is subject to white man's law.     

Is there a role for the application of customary law in addressing aboriginal criminality in Australia

In the past decade, there has been no shortage of empirical evidence that supports the poor health, education, and employment prospects for Aboriginal Australians. Moreover, Aboriginal people are far more likely than non-Aboriginal people to be drawn to the attention of police and taken into custody. Their presence in the criminal courts is disproportionately high and they are vastly over-represented in prison. Commission after commission and study after study have concluded that Indigenous Australians are at vastly greater risk of threat to life, victimization, and health than non-Indigenous Australians. This essay argues that there are grounds for greater recognition of Aboriginal customary law as a means of addressing the malaise. It reviews the political and legal climate in which such responses to Aboriginal criminality are currently being addressed. Presented at the Academy of Criminal Justice Sciences Conference, Louisville, Kentucky, 13 March 1997. The author acknowledges the help of Paul Martin, legal practice librarian, University of South Australia and the resources of Graceland College.     

Predictive accuracy of dynamic risk factors for aboriginal and non-aboriginal sex offenders: an exploratory comparison using STABLE-2007

Although Aboriginal offenders are overrepresented in Canadian prisons, there is limited research examining the extent to which commonly used risk factors and risk scales are applicable to Aboriginals. Aboriginal (n = 88) and non-Aboriginal (n = 509) sex offenders on community supervision were compared on the dynamic risk factors of STABLE-2007. Data on sexual, violent, any crime, and any recidivism (including breaches) were collected with an average follow-up of 3.4 years. Aboriginal offenders scored significantly higher than non-Aboriginal offenders on STABLE-2007 total scores and on several items measuring general criminality. STABLE-2007 did not significantly predict recidivism with Aboriginal offenders (although it did for non-Aboriginals). The general antisociality items were generally significantly less predictive for Aboriginals than non-Aboriginals, whereas items assessing sexual self-regulation and relationship stability predicted similarly for both groups. These exploratory results suggest that Aboriginal sex offenders are a higher-needs group but that some STABLE-2007 items are not predictive with this population.     

What Was It They Lost?

Abstract

The issue of family violence is a modern scourge on Canadian society. Recent estimates indicate that during the previous five years in Canada, 7% of women and 6% of men encountered spousal violence (Statistics Canada, 2005). Furthermore, Aboriginal communities in Canada experience disproportionately high rates of family violence, due to a myriad of reasons. While the impact of colonization continues to affect the lives of Aboriginal people, what is less well known are the more recent social and emotional effects of excessive resource development, particularly in isolated communities. Through an examination of the perspectives of community workers regarding family violence in their community, located in northern Canada and displaced by hydroelectric development, a range of ideas were explored. Critical race theory provides a backdrop for understanding the endemic nature of the systemic racism that characterizes the relationship between Aboriginal peoples and the government. The study demonstrates that the social and emotional impact of excessive resource development continues to resonate in a negative manner, even many years following displacement.     

Memorializing Colonial Power: The Death of Frank Paul

Through an analysis of an inquiry into the death of an Aboriginal man in custody, I argue that the contemporary colonial relationship between white settlers and those whom they have dispossessed is spatially and racially organized as one between modern subjects and those who must be assisted into modernity. Law, in the form of an inquiry, serves to confirm these arrangements. In Part One, Redemption, I begin with the inquiry's conclusion that Frank Paul was intrinsically vulnerable. In Part Two, Memorializing, I unravel Frank Paul's story, showing the imprinting of colonial power on his body. In Part Three, Cleansing, I show that the Aboriginal body must be repeatedly evicted from the civilized spaces of the settler. In Part Four, Abandonment, when the cleansing ritual proves lethal, death is declared comprehensible, given the body's incompatibility with modern life. In Part Five, Death Worlds, I suggest that the Downtown East Side of Vancouver, Canada where Frank Paul lived is maintained as a death world where humans are reduced to the status of the living dead. Throughout, I argue that Frank Paul must be understood and remembered as an Aboriginal man whose body bore the imprint of an ongoing colonialism.     

Authorship,Authenticity, and Intellectual Property in Australian Aboriginal Art

This article analyzes research and legal cases about authorship, authenticity, and intellectual property in Aboriginal art. The concepts of Aboriginality, authenticity, and ownership are used to show the complexities of Aboriginal law, legal copyright, and the moral rights framework. The clan ownership of Dreaming makes Aboriginal artists' relationship different to other artists' individual ownership of their work. Research on this topic by members of the Faculty of Business and Law unit of the Centre for Leisure Management Research at Deakin University was undertaken for the Australian Institute of Aboriginal and Torres Strait Islander Studies. This article provides significant contextual analyses of major issues leading to Commonwealth Government inquiries and legislation in Australia during 2006-8.     

Understanding the Elevated Risk of Partner Violence Against Aboriginal Women: A Comparison of Two Nationally Representative Surveys of Canada

Using two large-scale representative samples of Canada collected in 1999 and 2004, this study examined Aboriginal women’s elevated risk for violent victimization relative to non-Aboriginal women. Aboriginal women had about four times the odds of experiencing violence compared to non-Aboriginal women in both surveys. In general, there were fewer differences in the impact of risk factors between Aboriginal and non-Aboriginal women in the 2004 than the 1999 survey, resulting in risk factors accounting for less of Aboriginal women’s elevated odds of experiencing violence in the 2004 than the 1999 survey. In both surveys, controlling for all available risk factors did not fully account for Aboriginal women’s elevated odds of experiencing violence. Results were consistent with the theory that much of Aboriginal women’s elevated odds of violent victimization may be linked to colonization. Future research is needed to provide direct evidence of a connection between cultural loss and Aboriginal women’s elevated odds of violent victimization.     

Placing Indigenous Rights to Self-Determination in an Ecological Context

In this paper the author focuses on Australian land management and in particular on the environmental management issues that could have been prompted by the High Court recognition in 1996 (in Wik Peoples v. The State of Queensland ) that native title to land and pastoral leaseholdings can co-exist. Drawing on themes of self-determination and co-existence, the paper looks at more specific topics such as aboriginal title to land—what has been called land rights or native title in Australia—and some implications of that for land, sea and resource management. Central to this analysis are competing theories of Aboriginal land management and links between Aboriginal traditional knowledge and conservation of species. These are illustrated through the marine mammal, the dugong. The Australian debates lead to the Canadian debates and then to Scandinavia and the role of the Sami people in protection and management of the Arctic region. Issues of indigenous self determination inevitably provide an overall theme to these discussions. As a matter of global concern, the paper asks, but does not decide, whether indigenous peoples may manage fragile eco-systems more effectively than outsiders. It maintains that what is important in this context is a broader question. This concerns how culturally inclusive land and resource management can emerge from recognition of indigenous land and human rights and how comparative developments can provide crucial cross-jurisdictional information for future developments and opportunities in the interests of environmental conservation.     

Reactions to Mandatory Sentences in Relation to the Ethnic Identity and Criminal History of the Offender

This study investigated the responses of 181 participants (87 men, 94 women), from Adelaide, South Australia, to scenarios describing mandatory sentences for perpetrators of a property offense committed in the Northern Territory, Australia. Four scenarios that were randomly distributed varied ethnic identity (White Australian, Aboriginal Australian) and criminal history (first-time offender, third-time offender). Participants completed attitude measures for both mandatory sentencing and capital punishment, a right-wing authoritarianism scale, and a scale concerned with sentencing goals (retribution, deterrence, protection of society, and rehabilitation). Results showed strong effects of attitude toward mandatory sentencing on scenario responses for variables such as perceived responsibility, deservingness, leniency, seriousness, anger and pleasure, and weaker effects of ethnic identity and criminal history. Participants were generally more sympathetic when the offender was an Aboriginal Australian. Results of a multiple regression analysis showed that attitude toward mandatory sentence was predicted by right-wing authoritarianism and by sentencing goals relating to deterrence and the protection of society.     

Aboriginal youth with foetal alcohol spectrum disorder and enmeshment in the Australian justice system: can an intercultural form of restorative justice make a difference?

Aboriginal youth with Foetal Alcohol Spectrum Disorder (FASD) are overrepresented in the justice system. FASD results from prenatal alcohol exposure, and may lead to cognitive, social and behavioural difficulties that increase susceptibility to contact with the justice system. This paper explores the potential contribution of restorative justice in creating diversionary options for Aboriginal youth with FASD, and related cognitive impairments, to prevent enmeshment in the justice system. The lesson from work in Australia and New Zealand is that restorative justice and Indigenous justice are different, but not irreconcilable, projects. We suggest that there is the potential for creating rich intercultural engagement spaces ‘in between’ restorative practices and Indigenous processes: provided that restorative justice – as an essentially Eurocentric paradigm of the Global North – does not attempt to colonise Indigenous justice. An appropriate model would have Aboriginal people engaged in the planning and management of diversionary options, with greater focus on diversion into place-based, Aboriginal owned and managed services. Restorative justice needs to engage with the historical demands of Indigenous peoples for their land and their way of life; though constantly imperilled by forces of neo-liberalism and colonialism, Indigenous peoples remain resilient and provide a vision of an alternative to Euro-modernity.