The economics of reparations
Land is intrinsic to Indigenous culture and identity. We are raised to understand that we belong to the land, not that it belongs to us, and with that belonging comes a responsibility to protect the land. This is why Indigenous people seek to assert sovereignty, pursue land rights and seek the means to self-determine.
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 that “with the consent of the natives” he was “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 along the eastern coast of Australia. On multiple occasions, the landing parties were repelled. Cook wrote in his journal that “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”.
And so began the racist lie of terra nullius, which dispossessed a people from their land – land that they were culturally bound to protect, perform ceremony on and conserve.
This was particularly heinous given that even English law conceded this land was being taken in contravention of prevailing law, which stated that land could only be acquired in one of three ways: through settlement, where territory is uninhabited and the “settlers” brought with them English law; through conquest, where territory was inhabited and the native laws survived, provided they weren’t discordant with laws of the Crown; or through cession, where the territory was inhabited and the sovereignty was ceded to the Crown. In cession 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. The English common law contained a definition of “uninhabited lands” that considered lands to be 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 result of this invasion and theft was that Indigenous people suffered immeasurable damage in the form of attempted genocide, dispossession, disenfranchisement, slavery, child removal and the destruction of family structures spanning generations. We suffered sexualised violence, massacres and governmental policies of oppression spanning more than 200 years. The degree of economic and non-economic damage forced on Indigenous people is simply incomprehensible, particularly in circumstances where Indigenous people have to participate in a capitalist society – one that seeks to maintain the oppression and poverty faced by most Indigenous people.
In these circumstances, how can we possibly begin to deconstruct and consider the economics of reparations?
The nature of the society that existed before and after invasion are in diametric opposition, so there is no means by which to restore this for Indigenous people. Any assessment of damages will always fall short of what is just, but the law provides for damages or compensation in the event of a tort or crime. Australia has committed both.
Over the past few decades, there have been disjointed and clumsy attempts at reparations. In the case of the “stolen wages” claim and the state-based compensation to the Stolen Generations, however, the effect of the money provided does little to redress the trauma inflicted on the Indigenous people within these claim categories.
The rhetoric of taxpayer dollars funding welfare and Aboriginal communities is deliberately divisive and paints a picture so far from the truth. We know that this country – land and people – were taken without recompense, treaty or even the consideration of negotiation. The wealth derived not only from the value of the land but the use of the land for industry and mining, the export of minerals and the use of slave labour, has all been without recompense.
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 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, this assessment is nigh on impossible and, frankly, this country cannot afford the exercise, let alone what would be deemed “just” damages in this context.
In the context of land value and economic exploitation of land, the forensic analysis may be possible. The fact is, the Australian economy has enjoyed a steady increase in value over the past 230 years. The initial penal colony quickly became a livestock and pastoral empire, to the immediate detriment of 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. There were mass wildlife shortages because ecological sustainability was not a concept considered by the white “settlers”. The subsequent technological era saw increases in mining activity and the service sector, with the economy growing to in excess of $US1 trillion. It has continued to grow despite world economic troubles in recent years.
The success of the Australian economy is not down to economic management. Despite what 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. Only a small portion of the cultural lands have been returned to traditional owners and almost all of the land “returned” is vulnerable to native title extinguishment for mining if they are not already subject to the 99-year lease provisions. Communities remain vulnerable to governmental whim, where water can be turned off, along with electricity and removal of essential services due to the notion that living a cultural life on country is a “lifestyle choice” for which the mainstream population shouldn’t have to pay.
To gain even a ballpark figure for just reparations, the forensic analysis would need to consider the land value, which is currently estimated in the trillions. Added to this would be the wealth derived from the land – multiplied by the amount of years and steady growth – which is also well into the trillions. And then, the damages claims for massacres, rapes, child removal, slave labour, trans-generational trauma and environmental damage.
A rudimentary example of this would be: land + earnings from mineral resources + (interest x 230 years) + non-economic loss.
There is no meaningful way to undertake this exercise, but we can safely estimate that this figure far exceeds this nation’s gross domestic product and any realistic representation of reparations would undoubtedly send this country broke – a reality that serves no one. This is why the means to self-determine are so critical to Indigenous people.
We do not want this country or the people to suffer, despite all that has been suffered at the hands of those decision-makers in the power structures who seek to reinforce our oppression. We merely want the ability to create infrastructure and policy that would see our communities flourish.
For this country to ever heal and reach maturity as a nation, the injustice of invasion and all that came with it needs to be addressed.
Action needs to be taken to meaningfully acknowledge the truth of our history. The government needs to take restorative and reparative action for acts of the past – which continue to have effects now – and take corrective action to prevent any future occurrences that would subjugate Indigenous people.
If Indigenous people cannot be afforded the dignity of having sovereignty acknowledged, land rights and the means in which to self-determine, then it is only fair that Australia pays the rent.
This article was first published in the print edition of The Saturday Paper on Mar 10, 2018 as "The economics of reparations". Subscribe here.