Gaynor Macdonald

Aboriginal Inequality: The Seemingly Intractable?

The extent of Indigenous inequality—and its intractability—is well-recognised, as is its history in forms of structural violence. But we need to step back, to ask how the indices of inequality are defined and measured, by whom and with what ideal outcomes in mind. Less well-recognised is the cultural violence that can—and often does—accompany even the most well-intentioned programs designed to address inequalities when these are inadequately understood in the first place. The challenges include political economy coming to better appreciate how the dynamic of cultural difference impacts on people encapsulated within a capitalist economy, and anthropology better incorporating this same economy into their understandings of contemporary Indigenous worlds. There are no easy solutions to a social issue that has been decades in the making but first there is a pressing need to find the right questions: what is ‘inequality’? who defines it and on what basis? what kinds of ‘persons’ are experiencing which inequalities and why? These complex, often overlooked, questions are the essential foundation from which a collaborative approach can proceed.

Who is the ‘human’ in ‘human rights’?

rights, abstract humans A discussion of human rights takes place where philosophy and anthropology intersect with politics, and where abstraction meets materiality and sociality; it is complicated by the language of the law, which resonates in different ways even in ‘Western’ cultures. The notion of rights confines relationships to legal definitions, in practice avoiding the reciprocal responsibilities they entail. Rights discourse ‘replaces relationships with rules; situational considerations, with abstract principles’ (Englund 2006, 48). Socially meaningful relationships are between persons, not humans. Social– cultural worlds render various humans as persons of specific kinds with specific social values. Only humans rendered as persons can hold rights because those rights are defined and distributed within a specific social world. When abstracted, they become ‘missing persons’ (Douglas and Ney 1998). In political and legal discourse and practice, real persons experiencing injustice can disappear from public consciousness under the weight of other abstractions: citizen, refugee. The notion of ‘rights’ assumes universal equality before the law, above ‘any actual political and cultural factors influencing conflicts and disputes’ (Englund 2006, 49). But what rights adhere to which persons and under which laws varies in place and over time. The critique of ‘human rights’ as universalising, Western and imperialistic developed because, to have rights, humans must become persons; persons are culturally and socially constituted and their rights are specific. To universalise them is to impinge on their right to their specificity. Rights are relational: they protect and * Department of Anthropology, University of Sydney. Email: gaynor.macdonald@sydney.edu.au. 108 Australian Journal of Human Rights 2013 restrict, they are sites of contestation. Human rights as an abstraction thus obscures the particular behind the general. Like equality, the more universalised the idea of human rights, the more it privileges sameness. It is easier to identify the persons who should be treated equally and are not than the persons who are treated equally despite understanding themselves as having a right to difference. Universalising the concept of human rights can render people ‘equal’ such that the right to difference is denied: human rights discourse thus becomes a form of moral imperialism (Stoll 2006), as well as political imperialism. Colonised peoples encapsulated within nation-states seek rights based on difference, not sameness. English-speaking settler-states have addressed this challenge in various ways: Australia’s denial that Indigenous rights arise from prior sovereignty as well as from cultural and other differences has been particularly marked. This article explores contradictions in Australia, where denying and limiting the rights of Aboriginal peoples1 has taken place through strategies of exclusion (which draw on limitations of humanness) and inclusion (generalising rights). It describes how humans, persons, rights and difference are redefined to achieve an ongoing denial of rights. Discredited ‘race theories’ remain important to understanding the ‘human rights’ position of Aboriginal peoples today, because racialising remains an ongoing strategy for deflecting demands for rights. Historicising humanness: racialising Aboriginal Australians Despite knowing that they had culture and a system of land ownership (Tench and Flannery 2006; Collins 1798), the colonists arriving in Australia in 1788 denied the status of persons with sovereign rights to the people they encountered. Indigenous sovereign rights were recognised by the British legal system in the North American colonies, and would be in New Zealand: in Australia, they were denied — in large part because of ideas about human difference dominant at the time. The United States Declaration of Independence asserted equality and freedom for all, which had the effect of elevating theories of ‘race difference’ from political practice to pseudo-science because slaves (mainly from Africa) were essential to America’s economy. Slavery was an ancient practice: slaves were persons whose rights were forfeited, but they were not considered less than fully human. This new idea allowed the ongoing enslavement, through colonisation and dispossession, of peoples defined 1 Australia’s Indigenous peoples include Torres Strait Islanders as well as Aboriginal peoples. I do not include the former in this analysis. Volume 19(1) Who is the ‘human’ in ‘human rights’? 109 as less-than-human. Early in the 19th century, scientists claimed that human variation indicated different ‘species’: polygenism positioned Africans between ‘man’ and lower primates, Australian Aborigines between Africans and orang-utans. At the time, humanitarian and anti-slavery movements challenged the right of one person to own another, but ignored this hierarchising of humanness: all ‘God’s creatures’ (animals as well as humans) should be treated with respect. Humanitarianism avoided rights: there was moral outrage about inhumane treatment, but not about colonisation. The 1837 British parliamentary report into the treatment of colonised peoples drew ‘clear lines between the civilized society of Europe and the “degraded” uncivilized Aborigines’ (Blackstock 2000, 69). Humanitarian obligations could replace recognition of sovereign rights because Aboriginal peoples were uncivilised. Churches were charged with the responsibility ‘to ameliorate the effects of colonial contact, as it pressed forth with colonization and the search for wealth’ (Blackstock 2000, 69). Understanding themselves as dispossessed, and making demands for the return of their land (for example, van Toom 2006), Aboriginals were in no position to demand recognition as sovereign peoples. The mid to late 19th century saw theories of species difference give way to monogenesis. While not Darwin’s intention, his theory of unilinear evolution was meshed with Spencer’s argument that civilization evolved to create ‘social Darwinism’. If humanness developed in unilinear fashion, ‘difference’ must mean some were less evolved than others. Technology (pottery and writing) was one measure: ‘civilized’ technology meant the British had bigger brains. The sophistication of Aboriginal technologies was unappreciated and Aboriginal Australians were described as the most ‘savage’. Although not uncontested, these views became popular. Social Darwinism, rendering Aboriginal peoples a curious relic of the stone age, became a convenient narrative of colonisation. The Age could publish the following in an editorial on 11 January 1888: It seems a law of nature where two races whose stages of progression differ so greatly are brought into contact, the inferior race is doomed to wither and disappear. The process seems to be in accordance with a natural law which, however it may clash with human benevolence, is clearly beneficial to mankind at large by providing for the survival of the fittest. Human progress has all been achieved by the spread of the progressive races and the squeezing out of the inferior ones. No one can contend that it would have been better for the world had no European set foot on this continent and the blacks had been left to the chance of reaching civilization by a slow course of natural development. It may be doubted whether the Australian Aborigines would ever have advanced much beyond the status of the neolithic races in which we found him, and we need not therefore lament his 110 Australian Journal of Human Rights 2013 disappearance. All that can be expected of us is that we shall make his last days as free from misery as we can. [Page 4.] Haeckel illustrated ‘scientific opinion’ at the turn of the century: The mental life of savages rises little above that of the apes, with which they are genealogically connected ... Their intelligence moves within the narrowest bounds and one can no more (or no less) speak of their reason than of that of the more intelligent animals ... These lower races (such as the Veddahs or Australian negroes) are psychologically nearer to the mammals (apes or dogs) than to civilized Europeans; we must, therefore, assign a totally different value to their lives. [Haeckel 1904, 56–57, emphasis added.] De-humanised Aboriginal people had diminished social valuer and no rights worthy of recognition. Matter out of place: the civilising project The consequences of social Darwinism persist: its spurious ideas continue to inform the structural and cultural violence to which Aboriginal peoples were and are subject. At the beginning of the 19th century, they legitimised the denial of rights based on sovereignty; at the beginning of the 20th century, they provided for constitutional discrimination. The progressive colony of South Australia had extended the franchise to Aboriginal men and women, but upon Federation in 1901 all Australian Indigenous peoples were excluded. This allowed states to treat Aboriginal people as wards (see Anderson 2013), restricting freedom of movement, of marriage to whom they chose; and to work where they wished. Aboriginal people were sequestered on reserves at the whim of officials and denied all but the most basic education. Hundreds of thousands of children were institutionalised and trained for menial labour. Although discredited, the attitudes social Darwinism engendered are evident throughout the 20th century because they continue to legitimise the denial of Aboriginal rights. In the 1928 judicial enquiry into the Conniston massacres, after asking why the massacre of a large number of Aboriginal people had been deemed necessary, the judge was told that the police ‘shot to kill’, for ‘what is the use of a wounded blackfellow hundreds of miles from civilization?’ (Northern Territory Times, 9 November 1928, cited in Elder 2003). The attitude that Aboriginal lives were worthless continued. In response to a claim that

Autonomous Selves in a Bureaucratised World: Challenges for Mardu and Wiradjuri

Different histories and ecologies separate the Mardu of the Western Desert from the Wiradjuri of rural New South Wales, yet both evidence a desire for a social autonomy grounded in the value both place on personal autonomy. This claim flies in the face of assumptions that distinctive intra-Aboriginal values and practices collapse in the undermining of the cosmological framework of the Dreaming. The Wiradjuri, although they stayed in country, could not sustain their cosmological understandings in the face of huge transformations in the interests of pastoralism. Yet Wiradjuri historical experiences reproduced socio-economic conditions within which understandings of personhood and sociality could be maintained. They have lived within a dual economy: their allocative economy articulating with capitalism in ways that continued to inform Wiradjuri persons. These conditions have been severely constrained by welfare dependency and bureaucratic control—for Mardu as well as Wiradjuri.

The Secularisation of Riverine Law in South-East Australia

The decline of religious beliefs and practices in the south-east of Australia is often read as a ‘loss’ of cultural meaning and practice. In this paper, I look at the significance of secularisation for laws associated with land ownership, arguing that it is in the practice of law that one sees distinct continuities, rather than in the religious vehicles in which they were once packaged. This implies that we need to understand the operation of law in terms of its cultural and social intentions and effects, rather than as religiously-defined edicts. I then look at the implications of this for native title research.

Death in life or life in death? Dementia’s ontological challenge

ABSTRACT Is it possible to end one’s life well with dementia? The perception of dementia as death brought into life flows from ideas about humanness embedded in medicine’s Cartesian paradigm. Dementia as incurable brain disease exacerbates negativity. But the real impact of dementia is that it changes social relations: to live well with dementia requires a relational not Cartesian understanding of life. A relational ontology prioritizes social health: to live is to be held in connection. Negativity produces the disconnection that is death, with or without disease. When people with dementia are held in connection, they live a better life.

Human Rights in Context: Culture, Power and Personhood

This collection of articles emerged from a symposium titled Culture and Rights: Scepticism, Hostility and Mutuality, coordinated by the Department of Anthropology at the University of Sydney. The title reflected our sense that the relationship between culture and rights was no longer incidental, but rather formed a recurrent thread in the contemporary points of reference of both anthropological and human rights practice. In particular, the work of Englund (2006), Goodale (2006), Humphrey and Valverde (2007), Martínez (2011), Merry (2003; 2006) and Riles (2006a) helped give form to this sense and to the way the symposium developed. A recurrent theme of the articles was the specific conditions under which anthropologists encounter rights discourse, activists, claimants and practitioners as an integral aspect of their context of research. Martínez in his keynote address (this collection) explored both the dynamics of a specific example of such a relationship and its methodological implications.