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Krygier, Martin --- "The Meaning of What We Have Done" [2010] UNSWLRS 23

University of New South Wales Faculty of Law Research Series

The Meaning of What We Have Done [2010] UNSWLRS 23 (19 June 2010)

Last Updated: 20 June 2010

THE MEANING OF WHAT WE HAVE DONE

Humanity, invisibility and law in the European settlement of Australia[1]

MARTIN KRYGIER

ABSTRACT

Raimond Gaita’s contributions to public debate in Australia first became well known through some 50 columns he wrote for the Australian intellectual/political magazine, Quadrant. Lay readers who encountered him for the first time episodically, in articles on one issue of public controversy or another, might imagine that Gaita’s thought was a series of one-off responses to the provocations of these particular issues, united perhaps by attitude and style, rather than by deeper connection. Particularly in the disputatious, but rarely argumentative, public culture of Australia, if your response was different, that was as far as you needed to go. You had him branded: friend or foe.

What is missed and trivialised in such (very common) sorts of responses is the extent to which Gaita had come to these skirmishes well provisioned. He had, as it were, assembled his troops in Good and Evil. An Absolute Conception and others of his philosophical works (A Common Humanity), independently from sending them off on these particular public expeditions, and not even for that purpose. Or to use another, marginally less lame, metaphor, his is a rather powerful stream of thought. Its tributaries go in many directions, and adapt to different and particular circumstances. You can follow them without knowing their origin, there are still many things to learn, and there are always novelties along the way; it is a running stream, after all, not a stagnant pool. But to understand the source and depth of it all, it helps to read his public writings in the light of his academic ones. You still may not accept his conclusions, but you will have at least a deeper understanding of what you are rejecting or, perhaps, missing.

In the paper, prepared for a Festschrift for Gaita, I outline some elements of his account of moral understanding, which he later brings to discussions of Aboriginal-white relations. Then I discuss one legal case – Mabo (1992), on which Gaita has written. I conclude by reflecting on the significance he attributes to this case, and the significance of what he attributes to it. Neither that case nor native title, the issue it treats, is the only or even pre-eminent source of the moral perturbations that have recurred over the history of white settlement in Australia. However, there is something foundational about the issues they raise which warrants special attention.

Raimond Gaita’s contributions to public debate in Australia first became well known through some 50 columns he wrote for Quadrant magazine, from 1990 while Robert Manne was its editor until Manne quit that position in November 1997. There were increasingly strident complaints from some Quadrant readers about the difficulty and obscurity of his writings. Most of the early murmurings claimed not to object to what Gaita was saying (how could they, since the complaint was that it was incomprehensible?) but focused solely on matters of style. It was all too hard.

Paradoxically, however, the complaints became angrier and more focused when Gaita began to write a number of eminently accessible columns, on the moral significance of white Australians’ treatment of Aborigines. His claims were controversial, but he was far more often denounced and derided than confronted. And strangely, the same people who had complained that they couldn’t understand him, now complained even more loudly when they imagined they could. Indeed they seemed more offended by his clarity than his obscurity.

The hostility was remarkable. Less was heard about style. It was now the content that was objectionable; perhaps it had always been so. But although many of the attacks were crudely political, not all the discomfort was. For Gaita is a difficult and disturbing writer. His thinking is relentlessly serious, complex and intense. It also goes deep. Each of those elements might give cause for discomfort, or at least a headache. Moreover some of the confusion was almost certainly real, and in a way a tribute to his thought, if not always to his ability fully to convey it in an essay. He is a larger thinker than is easily fitted into that form. His thought is rich, systematic and interconnected. It stems from thought-through commitments on serious matters over a broad range. Exposure only to particular examples of it directed to particular problems, without the intellectual ground within which they figure, can be perplexing. Deployed on their own, it is not always clear where words and phrases which have been forged and tempered elsewhere come from, what gives them the particular weight and significance that Gaita attributes to them and what their implications are.

Lay readers who encountered him for the first time episodically, in articles on one issue of public controversy or another, might imagine that Gaita’s thought was a series of one-off responses to the provocations of these particular issues, united perhaps by attitude and style, rather than by deeper connection. Particularly in the disputatious, but rarely argumentative, public culture of Australia, if your response was different, that was as far as you needed to go. You had him branded: friend or foe.

What is missed and trivialised in such (very common) sorts of responses is the extent to which Gaita had come to these skirmishes well provisioned. He had, as it were, assembled his troops in Good and Evil (Gaita 2004, first edition 1991) and others of his philosophical works, well before they were sent off on these particular public expeditions, and not even for that purpose. Or to use another, marginally less lame, metaphor, his is a rather powerful stream of thought. Its tributaries go in many directions, and adapt to different and particular circumstances. You can follow them without knowing their origin, there are still many things to learn, and there are always novelties along the way; it is a running stream, after all, not a stagnant pool. But to understand the source and depth of it all, it helps to read his public writings in the light of his academic ones. You still may not accept his conclusions, but you will have at least a deeper understanding of what you are rejecting or, perhaps, missing.

In the next section, I outline some elements of Gaita’s account of moral understanding, which he later brings to discussions of Aboriginal-white relations. Then I discuss one legal case – Mabo (1992), on which Gaita has written. I conclude by reflecting on the significance he attributes to this case, and the significance of what he attributes to it. Neither that case nor native title, the issue it treats, is the only or even pre-eminent source of the moral perturbations that have recurred over the history of white settlement in Australia. However, there is something foundational about the issues they raise which warrants special attention.

Polemics in this country have often concerned more obviously spectacular parts of that encounter, such as whether there have been massacres, how many, and why; what were the motives for removal of children from their Aboriginal parents; whether it makes sense, either conceptually or morally, to speak of genocide in relation to our shared history. Debates on these matters have often, and fittingly, carried a high moral charge, and Gaita has participated in several of them. But lying in the background, unnoticed or seen as just a dispute over property, is what can be argued to be the basis of all of the rest – denial of Aboriginal connection to their lands. In a real sense, it seems to me that everything else flows from this, or is implied by it. Whether I am right about that or not, it is important enough.

I

Gaita’s fundamental concern is with the character of moral understanding, something that, he argues, is itself often misunderstood. One such mistake frequently made according to Gaita, is the moraliser’s identification of moral appraisal with praise or blame. In Romulus, he drew attention to what he later called his father’s ‘non-judgmental moral severity’ (Gaita 2000: 96). In Good and Evil and again in A Common Humanity, he argues that ‘[p]eople can do morally terrible things yet not be blameable for them, or not, at any rate, in a way commensurate with their terribleness’ (Gaita, 2000, 44). He recalls the chorus in Oedipus Rex, which ‘held Oedipus responsible for his unintentional deeds for which he showed remorse. It did so through the quality of its pity for him, for the evildoer he had unwittingly become’(Gaita 2004, 44; cf. 2000, 94ff.).

Moral understanding is not the mere servant or even guide of our purposes, a kind of higher-order prudence, but the judge of these matters. But it is not a hanging judge. Whether moral appraisal should be accompanied by praise or blame is a contingent, circumstantial matter which will vary according to the circumstances, knowledge, intent, and options available to those whose actions we seek to understand. Whatever one concludes about that, moral appraisal is primarily about getting right the moral meaning of what persons have done. For though it is commonplace to think of morality as primarily a source of principles to guide action, it is often not that. Even when it is, ‘it is also an attempt to understand the meaning of what we do’ (Gaita 2004, 264). To reveal such meaning, factual knowledge, however detailed, is not enough. Often one knows all by way of evidence that one could have; one merely lacks, whether wilfully, or blindly, or unimaginatively, or because it’s hard, ‘ethical understanding’ of what one knows:

Ethical understanding is often coming to see sense where we had not seen it before, or coming to see depth where we had not seen it before. It is seldom learning something completely new (there are no Nobel Prize-winning discoveries in ethics) and it is seldom seeing that there is, after all, a valid argument to support positions we had previously judged to be dubious. It is often seeing what someone has made of something that we had often heard before. (Gaita 2004, 281)

Central to our common moral understandings is that we distinguish relationships to other humans from those to anything else. Indeed, we do more. We evince plenty of evidence that, for us humans, ‘human beings are precious beyond reason, beyond merit and beyond what most moralisers will tolerate’ (Gaita 2000, 27)_. Hard to say why. Perhaps we should treat killing a neighbour as we do swatting a fly, both of whom (or is it ‘which’?) can be pesky. But most of us don’t. And those who do are justly condemned. We mark the distinction with different words – you don’t murder flies, or even dogs, even though they’re man’s best friend – and different legal and moral implications flow. One can pretend to deny the significance of the distinction, but it is hard to do so seriously or consistently.

The strongest attempt in the modern philosophical tradition to ground the distinction we commonly draw, of course, is Kant’s. But Gaita argues that Kant’s talk of persons, reason, ends and their kingdom, like other philosophers’ regard for ‘human flourishing,’ ‘inalienable rights,’ and so on, are all ‘ways of whistling in the dark, ways of trying to make secure to reason what reason cannot finally underwrite’ (Gaita 2000, 5). Nevertheless the peculiar significance of humans in our moral life is basic and we act on it all the time.

Ordinary forms of moral understanding typically begin, not with rational persons ‘contingently living the lives of human beings’ but with actual human beings, who though they usually do have a capacity to reason, embody much else which is central to our recognition of them as fellow humans and to our moral responses to them. It is our responses to our common humanity, Gaita insists, which underlie our moral relationships, which account for what we regard as good and evil, and which are daily acknowledged in the extraordinary and omnipresent feature of our relations with each other, ‘the way in which human beings limit our will as does nothing else in nature’:

The power of human beings to affect one another in ways beyond reason and beyond merit has offended rationalists and moralists since the dawn of thought, but it is partly what yields to us that sense of human individuality which we express when we say that human beings are unique and irreplaceable. Such attachments, and the joy and the grief which they may cause, condition our sense of the preciousness of human beings. Love is the most important of them. (Gaita 2000, 27)

There is no way to reason all the way to that recognition of the unique importance of humanity (to humans); often it makes no sense. But it is basic to our moral concepts, understanding and action. We might find it hard to justify, but we are not at all short of evidence that those we recognise as human matter uniquely to us.

Moral understanding, then, requires ‘recognition of the reality of other human beings’ (Gaita 2004, 53) and the depth of that reality. That is to say, to understand the moral meaning of what I do or have done to others depends on my recognising them as human beings with an ‘inner life in which morality is embedded,’ that they suffer, grieve, experience joy and loving attachments, and reflect upon the meaning of what they do and what is done to them, that all of this can go as deep with them as it does with us, that indeed in all these respects they are just like us (Gaita 2004, 117). These are not factual discoveries we make about individuals which we could check by looking up relevant scientific evidence, but an assumption we bring to our encounters with other humans. But sometimes we don’t.

It is often said that racists see objects of their contempt as not human, sub-human, as things not persons. But what could that involve? Not recognising that others belongs to the same genus as we? Confusing them with cows or dogs or cogs? That doesn’t often occur. Still, people who quite recognise that others are humans – language, jokes, tears even - can often rightly be said to have denied their humanity. What could that consist in?

In Good and Evil, Gaita discusses a case suggested by Stanley Cavell, of a slave-owner’s attitude to his slaves. The slave owner ‘sees his slaves as different from those whom he would never dream of enslaving’ (Gaita 2000, 167). Cavell speaks of ‘soul blindness,’ (Cavell 1979, 276; quoted in Gaita 2004, 156). Gaita writes of being ‘meaning-blind’ (Gaita 2002, 169). But slave owners knew that slaves were not horses. They talked to them, and some slept with them, bidden and unbidden. What, then, was missing?:

What he [the slave owner] must learn has to do not with facts and the consistent application of principles, but with meaning – with the meaning that the lives of his slave can have, with what they can understand, feel and do and, therefore, with what they can be. (Gaita 2002, 162, 163)

Some sorts of ‘meaning blindness’ might be matters of oversight or mistaken beliefs, that might be quickly repaired if we learnt some relevant facts. But Gaita believes that there are kinds, particularly racist responses to those of another colour, that go deeper and have nothing to do with evidence. Indeed they persevere, notwithstanding that we know everything conventional moral philosophers say matters about the humanity of others: that they ‘are persons ... rational beings ... with interests and desires, and so on’ (Gaita 169). What racists of this sort deny, indeed what Gaita says they find ‘unintelligible’ , is that the objects of racist rejection or condescension could have, as we do, complex and deep inner lives.

In a number of works he returns to two examples: one, a mother, M, who lost her son, and, seeing television footage of Vietnamese mothers grieving over children killed by American bombing, says ‘It is different for them, they can just have more.’ Again, James Isdell, Protector of Aborigines in western Australia in the 1930s, is quoted to say of mothers whose children were taken from them by his officers, ‘They soon forget their offspring ... I would not hesitate for a moment to separate any half-caste from its Aboriginal mother, no matter how frantic her momentary grief might be’ (Gaita 2002, 167). He explores these cases subtly and at length, to reach the conclusion that:

Remarks of the kind expressed by M and Isdell show how far racist denigration reaches: it reaches to everything ‘they’ say and do. Nothing – not their loves, their griefs, their joys, their hatreds – can go deep in ‘them.’ Someone who sees a people in that way cannot believe that ‘they’ can be wronged in ways ‘we’ can be. In the most natural sense of the expression they see ‘them’ as ‘less than fully human.’
We have no reason to believe that there are peoples or races who are as M and Isdell perceived the victims of their denigration to be – incapable of the relationships that in part condition and in part express our sense that every human being is unique and irreplaceable as nothing else in nature is. Acknowledgment of that is the most important aspect of the acknowledgment that all the peoples of the earth had a common humanity. (Gaita 2002, 168)

Elsewhere Gaita claims of Isdell that, ‘[l]ike M, he suffered a kind of blindness to the meaning of what they had suffered. Although the grief of the women who had lost their children was visible and audible to him, he did not see in the women’s faces or hear in their voices grief that could lacerate their souls and mark them for the rest of their days’ (Gaita 2004, 333). Though Gaita knows that ‘not all the settlers were like that, nor was such racism always expressed in the acts and institutions of the colonial government’ (Gaita 2000, 79), he believes that the grounds on which white Australians accepted that nothing need stand in the way of wholesale dispossession of Aborigines was ‘the expression of the kind of racism that finds literally unintelligible the thought that its victims could seriously be wronged’ (Gaita 2000, 79).

There is something truly mysterious about meaning-blindness of this profound sort. What enables it, or disables those who manifest it, is truly a question not only for philosophy but equally for psychology and several others of the ‘human sciences.’ However I am not confident that the sources of blindness always go so deep, even when their consequences do. Negligence and thoughtlessness are never far from human affairs, all the more when combined with interest. And as Gaita points out, it is not rare to find that ‘some human beings are invisible to the moral faculties of their fellows’ (Gaita 2000, xvi). That being so, I would be cautious about attributing the profound sources of blindness that Gaita finds in M and Isdell to all those who failed to see, or found it unproblematic to live with, the deepest injustices that attend the history with which this chapter is concerned. And though colonial encounters offer more than their fair share of examples of people scarcely registering the humanity of people with whom they deal, there are plenty of others. Avishai Margalit captures how commonly and even easily human blindness can occur:

It is exceptional to see human beings as nonhuman. Yet it is easy to avoid seeing a person at all. This is an easy task whether it is intentional or nonintentional. Overlooking people does not necessarily mean turning one’s gaze away in order to avoid seeing those one does not wish to see. ... Overlooking human beings means, among other things, not paying attention to them: looking without seeing. Seeing humans as ground rather than figure is a way of ignoring them. Seeing someone in this way is the same sort of avoidance that we sometimes call seeing a human being as an object, but this case doesn’t really count as seeing the human involved as a thing. It is rather a case of not seeing the person or, more precisely, not paying attention to the person. ...
Overlooking the presence of the other is a recurrent theme in the anticolonialist literature of humiliation. The humiliation of the native is expressed in perceptual terms as seeing ‘through’ the native as if he were transparent rather than seeing him. What does it mean to see ‘through’ someone? One important sense is connected with seeing as normal what it is morally wrong to see as such. Seeing something as normal means seeing it as something that can be taken for granted. It means seeing things as ‘all right,’ as secure and stable. It is mixed up in our consciousness with the view that this is the way things are supposed to be. The normal allows us not to pay attention to details and to see our surroundings as familiar scenery that does not demand special examination, since it is assumed that things are the way they are supposed to be. (Margalit 1996, 101-02)

There are many forms of human blindness, then, and they do not all have the same character, causes or consequences. Whether they are of the sorts described by Margalit or of the still deeper and more alienating kind Gaita highlights, however, there is one thing they all share: they are not only a problem for the blind. Human blindness in this respect differs from blindness of the normal kind. It harms, often indeed devastates, the unseen far more than the unseeing. Indeed the latter often do quite well out of their affliction.

Part of the harm is psychological; it is radically disarming and demeaning to be ‘seen through,’ let alone to have one’s deepest attachments and feelings treated as non-existent and then, often enough, overridden. And it is commonly not open to the subject to do anything about it, since it has nothing to do with anything he or she does. As Margalit has also noted, the most common way in which humans are rejected ‘is mediated rejection ... expressed in the rejection of groups that the person belongs to, groups that determine the way the person shapes her life as a human being’ (Margalit 1996, 137). As a result, a peculiarity of human-blindness is that it is extremely contagious. When groups to which one belongs are rejected, one is also and one knows it, even in the absence of any manifestation of rejection in one’s own case.

Apart from the specific palpable injuries that human-blindness inflicts, Gaita insists on a deeper and distinct significance, common to all acts of injustice. They are injuries over and above, though generated by, the tangible harms or disadvantages they cause. The harm of ignoring, denying, rejecting the humanity of another, Gaita insists, like moral harms and injustices generally, is sui generis, not reducible to the acts that cause it or in which it is manifest, or to the palpable hurts that issue from it. If one is hurt by such an injustice, rather than by a falling branch, not only does one suffer the pain of physical injury. One has also suffered the distinct and autonomous harm of being treated unjustly; ‘[i]f the victim is murdered then he suffers not only the evil of death, but also the evil of having been murdered’ (Gaita 2004, 77).

And thus demands for social justice, while they may also be demands for things, are demands for more than things as well:

Treat me as a person, see me fully as a human being, as fully your equal, without condescension – these are not demands for things whose value lies in the degree to which they enable one to get other things. (Gaita 2000, 72)

Finally, not only is justice sui generis. Our valuing of it is an irreducible aspect of what, as humans, we are:

Our desires and interests, including our political desires and interests, are in part morally conditioned. It matters to us, as individuals and as members of political communities, that we are just and honourable, that our institutions are decent in ways that are not explicable entirely by other things that matter to us – safety, security and happiness, for example. Far from being explained by our need and desire for such things, moral considerations qualify what kind of safety or security we will accept, and to some degree actually define what we will count as real happiness and real flourishing. (Gaita 2000, 12-13)

II

In 1992, the Australian High Court decided the Mabo case (Mabo 1992), dealing with a claim by members of the Meriam people of the Murray Islands in the Torres Strait, to legal recognition of the land on which they had lived for time out of mind. The strictly legal issues were, in brief, whether the indigenous plaintiffs could establish a claim to property in the land, that pre-dated and also survived European arrival; and, even if they could, whether any such claim had been extinguished by acts of the Crown or Parliament since then. The court held 6:1 that they could and it hadn’t. But there was more to it than that.

It was clear that the colonial government and its successors had denied the existence of native title, from the time of first arrival. In the only Australian case on the subject, Milirrpum (Milirrpum 1971), Justice Blackburn was sympathetically conscious of the Aboriginal claimants’ connection with the land they claimed and of the depth of that connection. Indeed, he held that ‘the spiritual relation is well proved ... the aboriginals have a more cogent feeling of obligation to the land than of ownership of it. It is difficult to express a matter so subtle and difficult by a mere aphorism, but it seems easier, on the evidence, to say that the clan belongs to the land than that the land belongs to the clan’ (Milirrpum 1971: 270). Nevertheless, he held that the existing law did not recognise native title to land, and the courts could do nothing for them.

The High Court held differently in Mabo. The majority found that under English and then Australian common law, native title to land survived British acquisition of sovereignty. Pre-existing native title was recognised by common law. Though it could be ‘extinguished’ by sovereign legislative or executive acts inconsistent with that title, it did not end automatically with the ‘reception’ of English law that occurred, according to English legal doctrine, on first settlement of a colony. As Justice Brennan put it, running closely together legal doctrine and delicately-phrased critique:

As the Governments of the Australian Colonies and, latterly, the Governments of the Commonwealth, States and Territories have alienated or appropriated to their own purposes most of the land in this country during the last 200 years, the Australian Aboriginal peoples have been substantially dispossessed of their traditional lands. They were dispossessed by the Crown’s exercise of its sovereign powers to grant land to whom it chose and to appropriate to itself beneficial ownership of parcels of land for the Crown’s purposes. Aboriginal rights and interests were not stripped away by operation of the common law on first settlement by British colonists, but by the exercise of a sovereign authority over land exercised recurrently by Governments. To treat the dispossession of ownership of the Australian Aborigines as the working out of the Crown's acquisition of ownership of all land on first settlement is contrary to history. Aborigines were dispossessed of their land parcel by parcel, to make way for expanding colonial settlement. Their dispossession underwrote the development of the nation. (Mabo 1992, 68-9)

The point in this case was that though such incremental acts of dispossession were all that was needed to extinguish native title, and though they had occurred over time in most of Australia, they had not occurred in the Murray Islands, and maybe elsewhere. So the Meriam people’s native title persisted, recognised by, though not a creature of, the common law. It would be different in those many parts of Australia where Crown or legislative acts of extinguishment had taken place, or where the impact of colonisation and settlement had disrupted the required traditional connection with the land, but at least in the Murray Islands neither had occurred. Subsequent cases have explored the significance and scope of this acknowledgment of native title, and these restrictions on its scope.

The majority judges argued powerfully that their decision flowed from a correct reading of the fundamental principles of existing law. Indeed, Brennan, in the leading judgment of the Court, insisted that it had to do so, since however they or we appraised the effects of that law, ‘this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency’ (Mabo 1992, 29). However, native title had never been acknowledged by an Australian court before, it had been rejected in Milirrpum, there was a simple path available, and it led to a result opposite to the one the Court upheld. Indeed the sole dissenter, Justice Dawson, thought that other result was the only one the law allowed. I think the majority was right, but it was not a self-evident legal reading. What, then, prompted the Court to reconsider the law?

Such reconsideration is not in itself rare. Cases go on appeal because they are in one way or another hard. Sometimes this is because the law is ambiguous or contradictory or unclear, sometimes because what the law appears to be seems in a particular case to lead to an obnoxious or absurd result, and there are many other ways in which cases can be difficult. Much of legal theory is devoted to questions about how judgments can remain legal, while dealing with hard cases.

However the question remains: what impelled the majority judges in this case painstakingly to re-examine the law and come to this (for Australia) unprecedented result? Several of them made it plain that moral considerations were central. This is not to say that they ignored the law to legislate their moral views, as so many critics alleged. But it is uncontroversial, since they say so themselves, that something about denying the very possibility of native title led them in this case to put a more straightforward legal result under a spotlight, to examine it against other possibilities contained in the tradition. Again, there is nothing rare in that. It is typical of appellate cases. The high priest of Australian judicial ‘legalism,’ Sir Owen Dixon, has said as much.[2] When appellate judging is vulgarised for public polemic, as it so commonly is, any intrusion of moral values into legal decisions is presumed to be outlandish. But, whatever the case in routine matters, in hard cases that kind of intrusion routinely occurs and cannot be avoided. The real question is: what sort of intrusion is consistent with a judge’s duty to judge according to law? This is a difficult and contentious problem. But in one way or another such intrusions are bound to occur.

The majority judgments, which recognised native title, have been much discussed and I will move to them. But the sole dissenter, Justice Dawson, deserves special mention, though he has seldom received it. Dawson is what is called by legal philosophers a legal positivist: the law is what has an authoritative legal pedigree, moral judgments are something else (not necessarily less, but else). He is also a literalist (which positivists needn’t be, and in regard to hard cases commonly are not). That is to say, not only are moral judgments different from legal ones, but they are not for judges to make in deciding cases. So the question for him as a judge is what the law has been and therefore is. And he finds it unequivocal. Australian governmental and legal practice has systematically denied the existence of native title, and so the Court, as custodian of the existing law, unlike Parliament which is free to change it, must respect that denial. His catalogue of evidence as to colonial law and practice has real power. In fact, it does not take much to read it as a brief for moral critique, though it is not intended that way.

Thus:

Upon any account, the policy which was implemented and the laws which were passed in New South Wales make it plain that, from the inception of the colony, the Crown treated all land in the colony as unoccupied and afforded no recognition to any form of native interest in the land. It simply treated the land as its own to dispose of without regard to such interests as the native might have had prior to the assumption of sovereignty. What was done was quite inconsistent with any recognition, by acquiescence or otherwise, of native title. Indeed, it is apparent that those in authority at the time did not consider that any recognizable form of native title existed. (Mabo 1992, 139)

Again:

none of the measures taken for the welfare of the aboriginal inhabitants involved the acceptance of any native rights over the land. On the contrary ... nothing was said which could be construed in any way as a recognition or acceptance by the Crown of any native rights in the land. (Mabo 1992, 140, 141)
the policy of the Imperial Government during this period is clear: whilst the aboriginal inhabitants were not to be ill-treated, settlement was not to be impeded by any claim which those inhabitants might seek to exert over the land. Settlement expanded rapidly and the selection and occupation of the land by the settlers were regulated by the Governors in a way that was intended to be comprehensive and complete and was simply inconsistent with the existence of any native interests in the land. (Mabo1992, 142)

Dawson goes on to catalogue the ways in which legal restrictions on occupation were overridden. One example: ‘as settlement expanded, the quantity of land surveyed was insufficient to meet the demand, and so settlers were permitted by Governors Macquarie and Brisbane to occupy land without a grant or lease, such occupation being terminable at the will of the Crown’ (Mabo 1992, 145-46).

He mounts a legal-philosophical cri de coeur, of a morally revealing if traditionally constricted, sort:

There may not be a great deal to be proud of in this history of events. But a dispassionate appraisal of what occurred is essential to the determination of the legal consequences, notwithstanding the degree of condemnation which is nowadays apt to accompany any account. ... The policy which lay behind the legal regime was determined politically and, however insensitive the politics may now seem to have been, a change in view does not of itself mean a change in the law. It requires the implementation of a new policy to do that and that is a matter for government rather than the courts. In the meantime it would be wrong to attempt to revise history or to fail to recognize its legal impact, however unpalatable it may now seem. To do so would be to impugn the foundations of the very legal system under which this case must be decided. (Mabo 1992, 145)

Referring to Justice Blackburn’s judgment denying native title in Milirrpum, Dawson comments that ‘His Honour regarded it as significant, as indeed, I do, that there was a consciousness that the occupation of the land was a deprivation of the Aborigines, but that nevertheless no attempt was made to solve this problem by way of the creation or application of law relating to title to land which the Aborigines could invoke’ (Mabo, 149).

Dawson’s conclusion from that sad but detailed tale is plain, not only across the board, but specifically in relation to the Murray Islands:

the conclusion is inevitable that, assuming the native inhabitants of the Murray Islands to have held some sort of rights in the land immediately before the annexation of those islands, the Crown in right of the Colony of Queensland, on their annexation, exerted to the full its rights in the land inconsistently with and to the exclusion of any native or aboriginal rights. It did so under the law it brought with it. It did so from the start by acting upon the assumption ... that there was no such thing as native title and that the Crown was exclusively entitled to all lands which had not been alienated by it: lands which were designated as Crown lands. In making provision for the reservation of land for public purposes, in particular the welfare of the aboriginal population, the relevant legislation and the action taken pursuant to it disclose no intention to preserve native rights in the land: they were simply thought not to exist. (Mabo 1992, 159)

The majority does not dispute Dawson’s account of the history. Their interpretation of its legal and moral meaning is radically different, however. Brennan points to what lawyers would call a mistake of fact that underlay the colonial arrogation of rights to native land: the claim that the colony of New South Wales was ‘without settled inhabitants or settled law.’ The evidence, he says, is against it, and decisions based upon it can be overruled by his Court unless that would ‘fracture a skeletal principle of our legal system.’ He continues with the wry observation that:

It would be a curious doctrine to propound today that, when the benefit of the common law was first extended to Her Majesty’s indigenous subjects in the Antipodes, its first fruits were to strip them of their right to occupy their ancestral lands. (Mabo 1992, 39)

Nevertheless that was in fact the conclusion accepted and acted upon hitherto. It had been legally justified, in cases Brennan cites, on the basis either that the colonisers had ‘settled’ a land that had no ‘settled law,’ or that ‘some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society.’ He also cites a report of a House of Commons Select Committee on Aborigines that ‘the state of Australian Aborigines was “barbarous” and “so entirely destitute ... of the rudest forms of civil polity, that their claims, whether as sovereigns or proprietors of the soil, have been utterly disregarded.” In response, Brennan argues:

The theory that the indigenous inhabitants of a ‘settled’ colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs. As the basis of the theory is false in fact and unacceptable in our society, there is a choice of legal principle to be made in the present case. This Court can either apply the existing authorities and proceed to inquire whether the Meriam people are higher ‘in the scale of social organization’ than the Australian Aborigines whose claims were ‘utterly disregarded’ by the existing authorities or the Court can overrule the existing authorities, discarding the distinction between inhabited colonies that were terra nullius and those which were not. (Mabo 1992, 39-40)

The Court preferred the second route.

There is an austere containment in Brennan’s remarks about our history, though their implications are not obscure. The joint judgment of Justices Deane and Gaudron is more explicit. They too believe that a correct reading of the common law, if not the accepted reading, ‘preserved and protected the pre-existing claims of Aboriginal tribes or communities to particular areas of land with which they were specially identified,’ though they doubt that even had this been recognised in the eighteenth or nineteenth century it would have availed them much:

In practice, there is an element of the absurd about the suggestion that it would have even occurred to the native inhabitants of a new British Colony that they should bring proceedings in a British court against the British Crown to vindicate their rights under a common law of which they would be likely to know nothing. ... Even if the native inhabitants of an eighteenth century Colony did somehow institute proceedings against the Crown or its agents in the British courts, however, they would have failed. (Mabo 1992, 93-4)

In the meantime, ‘the Aborigines were increasingly treated as trespassers to be driven, by force if necessary, from their traditional homelands’ (Mabo 1992, 105). Justices Deane and Gaudron point out that this was not done in some fit of absent-mindedness. If perhaps not at the very beginning, then ‘[i]ncreasingly, the fact that particular tribes or clans enjoyed traditional entitlements to the occupation and use of particular lands for ritual, economic and social purposes was understood. Increasingly that fact was even acknowledged by government authorities and in formal dispatches ... Nor can it be said that it did not occur that the dispossession of the Aboriginal inhabitants might involve the infringement of rights recognized by the common law’ (Mabo 1992, 107). There were prominent voices that said it did. Nevertheless, they did not prevail; ‘the oppression and, in some areas of the continent, the obliteration or near obliteration of the Aborigines were the inevitable consequences of their being dispossessed of their traditional lands’(Mabo 1992, 106).

As a result, traditionally accepted legal doctrine:

provided the legal basis for the dispossession of the Aboriginal peoples of most of their traditional lands. The acts and events by which that dispossession in legal theory was carried into practical effect constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices. (Mabo 1992, 109)

Elsewhere they write of the development of a ‘conflagration of oppression and conflict which was, over the following century, to spread across the continent to dispossess, degrade and devastate the Aboriginal peoples and leave a national legacy of unutterable shame’ (Mabo 1992, 104).

Deane and Gaudron are conscious that they have written in ways that stretch the deliberately anodyne and technical conventions of the Australian judicial norm. They explain:

we are conscious of the facts that, in those parts of this judgment which deal with the dispossession of Australian Aborigines, we have used language and expressed conclusions which some may think to be unusually emotive for a judgment in this Court. We have not done this in order to trespass into the area of assessment of moral guilt. ... the reason which has led us to describe, and express conclusions about, the dispossession of Australian Aborigines in unrestrained language is that the full facts of that dispossession are of critical importance to the assessment of the legitimacy of the propositions that the continent was unoccupied for legal purposes and that the unqualified legal and beneficial ownership of all the lands of the continent vested in the Crown. Long acceptance of legal propositions, particularly legal propositions relating to legal property, can of itself impart legitimacy and preclude challenge. (Mabo 1992, 120)

III

Gaita is interested in the moral understanding that underlies Mabo. He is not centrally concerned with the internal lawyerly aspects of the case, and on some of those he might be criticised. Following the judges in Mabo itself, who in turn seem to have derived this from the historian Henry Reynolds, he attributes too much to what he and they call ‘the doctrine of terra nullius’ as a legally enshrined justification for prior history. In fact, it appears that the common law had not contained such a doctrine, at least in those terms (see Bartlett 1993, ix; Ritter 1996, 5-33; van Krieken, 2000, 63-77). It was a doctrine of international law which had not hitherto been invoked by our domestic courts. Nor did they, or the settlers who denied recognition of native title from the first (see Banner, 2005), need it.

Gaita also perhaps overrates the legal significance, and in turn its moral significance, of the Mabo judgment itself. Its self-imposed restrictions are, after all, considerable. Native title is available only where Crown or Parliament have not acted to extinguish it. For most of Australian history there was little or nothing to prevent this occurring without payment of compensation. And native title could be claimed only by those able to establish traditional connection to land, after over 200 years of uninvited colonial settlement, disruption and displacement. Even Justice Brennan, in his otherwise remarkable and admirable judgment, characterises the basis of this restriction in a somewhat coy and euphemistic manner: ‘when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared.’ (Mabo 1992, 60). The tide of history has a lot to answer for, including the fact that, as W.E.H. Stanner has observed, ‘[e]very fence in Australia encloses land that was once the sole or the shared possession of a particular group of Aborigines. There are virtually no exceptions to that statement. But in most of Australia, especially in the long-settled parts, it is now impossible to connect the original possessors in an exact or definite way with any living persons of Aboriginal descent’ (2009, 220).

Moreover, even with the legislative backing that Mabo later received, it is not clear how much it ultimately could achieve in practical terms. Thus Justice McHugh observes in a later case:

The dispossession of the Aboriginal peoples from their lands was a great wrong. Many people believe that those of us who are the beneficiaries of that wrong have a moral responsibility to redress it to the extent that it can be redressed. But it is becoming increasingly clear – to me, at all events – that redress cannot be achieved by a system that depends on evaluating the competing legal rights of landholders and native-title holders. The deck is stacked against native-title holders whose fragile rights must give way to the superior rights of the landholders whenever the two classes of rights conflict. (Western Australia 2002, 240-41)

Still, it is as a moralist not a lawyer that Gaita appraises the significance of Mabo, and he does so as much for what it reveals, understands and rejects as for what it does. It is as an example of ethical understanding, rather than production of guiding principles, that he praises it.

It should be easy by now to see why. In terms of Gaita’s account of moral understanding, it is hard to see how, even if all one knew of our history was what the judges in Mabo tell us, and after all there is much more, one could fail to see that Australian colonialism rested on a foundation of profound injustice. Indeed, one does not need Gaita to see that, though he helps. But what is the precise nature of that injustice? If ethical understanding is ‘an attempt to understand the meaning of what we do,’ then Gaita deepens ours, certainly he deepened mine.

For what does all this mean? In what does the deepest injustice of so many harms suffered consist? So many things have happened in these encounters between whites and Aborigines. Controversies have occurred over many of them: the number, nature, causes and consequences of deaths in the nineteenth century, removal of children in the nineteenth and twentieth, social and cultural dislocation, ill health, sexual predation and many other specific harms and ills. About all these matters Gaita’s demand that we seek a moral understanding of them, over and above an accurate appreciation of the facts of the matter, is pertinent. But the ‘original sin’, as it were, began earlier. When, for a range of motives, in a range of circumstances, with a range of consequences, white settlers denied with the full force of legally sovereign power Aborigines’ entitlement to live where they did and long had, on land to which they had the sorts of deep attachment that Blackburn acknowledged in Milirrpum, they didn’t merely take their property but ignored, violated, declined to acknowledge their humanity.

There are all sorts of specific consequences that flowed from that dispossession and the pastoral society that entered that space: the fencing, the sheep, the cattle, exclusion from properties and waterholes, the revenge exacted against any who compromised any of the above, not to mention the development of large cities such as Sydney and Brisbane, which displaced their indigenous owners and dwellers. And flowing from all that, the social and cultural dislocation, the loss of Aborigines’ connection to their forebears and their land, the decimation of their social order, not to mention the many frontier killings. But, as Gaita forces us to realise, there is still something else. It is easy to forget this foundational aspect of dispossession, either because one is committed to justify it, or to condemn more obviously brutal acts that occurred thereafter. But there is also the foundational injury itself, sui generis indeed. That involved, in Margalit’s words, being seen and treated ‘as ground rather than figure ... seeing as normal what it is morally wrong to see as such. ... as something that can be taken for granted .. as “all right,” as secure and stable ... the way things are supposed to be.’ Something like this is eloquently expressed by that great humanist and anthropologist Stanner, when he writes:

one cannot make full human sense of the development of European life in Australia without reference to the structure of racial relations and the persistent indifference to the fate of the Aborigines; in short, without an analysis of the Australian conscience ... the continuous working of a single influence with two victims – a sightlessness towards Aboriginal life, and an eyelessness towards the moral foundations of Australian development. Let us call it simply the fact of indifference. ... the destruction of Aboriginal society was not the consequence of European development, but its price, which is a very different thing. (Stanner 2009, 118, 119-20)

Of course everyone knew before Mabo that Aborigines had lost their land, and that we wouldn’t be here without that. Many thought that unjust, though many didn’t, and few of us did much, in my own case thought much, about it. But what was the injustice? All sorts of consequences could be cited: dispossession, domination, decimation, exclusion, marginalisation, rejection; the whole tragedy. And there could be endless argument – there is endless argument – about how much we contributed to any of this. But what Gaita reveals is that the denial of native title for over 200 years, and the easy and commonly Angst-free dispossession of Aborigines amounted to not merely a matter of property taken, nor even the many and grave material injuries that flowed from dispossession. It both was and symbolised the fundamental human-blindness which allowed ordinary, if covetous, settlers, not demons, to destroy cultures, peoples, and ways of life, with only an occasional uneasy thought. Often it was an expression of what Gaita describes as ‘the kind of racism that finds literally unintelligible the thought that its victims could seriously be wronged’ (Gaita 2000, 79). It is for this reason that Mabo is for him not merely a case about native title to property which came to the right conclusion, but rather ‘the acknowledgment in law of the full humanity of Aborigines, the acknowledgment that they, like us, had relations to the land that would make dispossession a terrible crime’ (Gaita 2000, 81). The singular and distinctive depth of Aboriginal connections to land, it might be added, only strengthens the point.

To take the original and enduring Aboriginal dispossession as a kind of natural, neutral, given, to defend it, and fume over its being questioned, is to fail comprehensively to exhibit a moral understanding of the deeper meaning of what was done. And then to write some thousand, on occasion plausible and on every occasion invincibly superficial pages, as Keith Windschuttle so far has (Windschuttle 2002, 2009), to question whether Aborigines were ill-treated in Tasmania or whether child removal had some malign motivation and effect, is strangely to stage Hamlet, not simply without its Prince, but without the whole Kingdom. Indeed, and only apparently paradoxically, so too is a sympathetic understanding of the injustice of dispossession limited to regarding it as theft on a grand scale. It was that, but it was something more as well.

So one natural implication of recognition of our common humanity with Aborigines must be that their dispossession from the land on which they had lived for millennia, and with which they had profound material and spiritual links, is in itself a profound injustice, whatever other consequences flowed from it and whatever else was done to them. Of course those consequences, too, fall to be judged morally. And all those other ways in which Aborigines have been treated, even if well-meaningly, without acknowledgment that, in Simone Weil’s terms, they had their own ‘perspective on the world’ – which adds up to very many ways indeed – they too are acts of injustice, all above and beyond the palpable injuries in which they inhere.

IV

If that is so, what should be the response of us, who benefit from these earlier injustices and their consequences, but which few of us committed or indeed know much about? Many conservative politicians and pundits have insisted that past sufferings, wrongs, and injustices are, as it were, not our problem, and this for essentially three reasons. First, we can’t be guilty of things we didn’t do. Second, there is good and bad in every nation’s past, and so in ours, but as former Prime Minister Howard so often used to say, our ‘balance sheet’ is positive. Third, if many Aborigines are in a parlous state today, then that is the present problem, to be dealt with by forward-looking acts of ‘practical reconciliation,’ rather than sentimentalised with symbolic gestures pretending to seek forgiveness for things we didn’t do.

Gaita’s views flow from his general position, but are developed in this new context of collective response ‘to those who are the victims of our wrongdoing or the wrongdoing of those who preceded us’ (Gaita 2000, 87). In response to the first, he, like several other commentators (Manne 2005, 202-04; Krygier 1995, chapter 4), agrees that one can only be guilty for what one has done, but insists that it is morally appropriate, often incumbent, for those who are part of a collectivity, who feel connections with it, to acknowledge shame for injustices committed by those with whom one has a deep connection or identification; cultural, national, familial. That is how we come to feel pride in national glories, and shame is the logical and moral flipside of that, justified by the very same sorts of emotional, cultural, physical, and moral connections we have.

Secondly, he does not argue that the balance sheet is wrongly calculated by national apologists. Rather he insists that that sort of calculation is not merely absurd and inoperable, but as practised so often, a denial of moral seriousness:

If we put together the thoughts that we have little to be ashamed of and that our history is ‘on balance’ a fine one, the relative weightlessness in these scales of the evil done to the Aborigines becomes apparent. The alternative need not be to conclude that on balance our history is a shameful one. It may be to resist such summing up. But if we insist on summing up, then we should not be surprised when Aborigines are insulted by the implication that the evil done to them should be treated as lightly as it is by those who sneer at ‘black armbands.’ Nor should anyone be surprised if they take such judgments as merely the further expression of the fact that they have always been, and continue to be, only partially perceptible to the moral faculties of most Australians. (Gaita 2000, 104-05)

Finally, the third response:

treats as morally and politically irrelevant the fact that the Aborigines are landless because they were dispossessed rather than because of a natural catastrophe. More generally, it treats as irrelevant that their suffering is saturated by a justified sense that they have been terribly wronged. To ignore that, to insist high-mindedly that real moral concern focus on the present and the future rather than the past, is to compound their humiliation and our shame.(Gaita 2000, 88)

And that is what the Court in Mabo, unlike many of its vehement critics, chose not to do.

V

Moral interpretation of our nation’s past is a difficult business, easy to get wrong, often because it’s driven by an urge to vindicate or excoriate. Recall, however, that Gaita’s theme is moral understanding and characterisation, not praise or blame. They too might be appropriate, but they are not automatically implicit in moral understanding. In the relatively short history of white settlement of this country, many wonderful things have occurred and been achieved, many sad results were not intended and few people who did evil thought that was what they did. People rarely do, but what does that tell us? Lots of otherwise decent people do otherwise indecent things, because they believe what everyone believes or do what everyone else does or, and often above all, because they don’t realise the significance and meaning of what they do.

Those Australians who feel a need to come to such realisation, long after many of the events have occurred, don’t punish and they don’t reward, though they might compensate and they might try to repair. We’re not a court. We seek understanding as members of this nation, striving to come to terms with what our forebears did, our inherited culture made available, and what has delivered us the country and nation of which we are part.

Such a search for moral understanding needs to exhibit tact and humility, depends on thoughtful, sensitive appraisal of the facts, and should avoid simple all-purpose characterisations of complex matters. And morality is not the only relevant register, either for dealing with the past or acting in the present. Tragedy was almost certainly written into our national history, as soon as whites decided to come here, and whatever we did. Nevertheless we did come here and we did some things and not others. It matters how we address what was done, and what terms we come to with it. If we fail or reject even the attempt, we might well have reason to feel not merely shame for our forebears, but guilt for our own acts or omissions.

It is also crucial, morally and practically, how we (an inclusive ‘we’) deal with the consequences of this history today. Understanding the injustices of the past provides no recipes for the present, except perhaps some negative ones. What we do now must reflect where we are now, what is available now, the complexity of moral choices that exist today, and the fact that some choices once perhaps possible no longer exist. However, given that we are where we are because of what we did where we were, acknowledgment of that is an unerasable part of ‘practical’ present and future activity.

Maybe more or fewer were killed than our polemicists concede. Maybe the motives for child removal were more or maybe less mixed than we understand. Perhaps fewer or more children were removed from their families than records reveal. What is undeniable is that the foundations of our nation lie in acts of wholesale dispossession of our indigenous populations. These were, Gaita has argued, at the same time acts of profound dehumanisation. For all the voluminous sound and fury of our public debates on these matters, they have rarely ventured into these deep waters. Perhaps that is why they have so often remained shallow, ‘beyond reason and beyond merit.’

REFERENCES:

Banner, Stuart (2005), ‘Why Terra Nullius? Anthropology and Property Law in Early Australia,’ 23, 1 Law and History Review 95-131.

Bartlett, Richard H. (1993), The Mabo Decision, Sydney: Butterworths.

Dixon, O (1965), ‘Concerning Judicial Method’, in Jesting Pilate, Melbourne: Law Book Co.

Gaita, Raimond (2000) A common humanity. Thinking about love and truth and justice, London: Routledge.

Gaita, Raimond (2002) The Philosopher’s Dog, Melbourne: Text.

Gaita, Raimond, (2004) Good and Evil. An absolute conception, 2nd edn, London: Routledge.

Krygier, Martin (1986), ‘Julius Stone: Leeways of Choice, Legal Tradition and the Declaratory Theory of Law,’ [1986] UNSWLawJl 12; 9 University of New South Wales Law Journal, 26-38.

Krygier, Martin (1997), Between Fear and Hope. Hybrid Thoughts on Public Values, ABC Books: Sydney.

Manne, Robert (2005), Left, Right, Left: Political Essays 1977-2005, Melbourne: Black Inc Books.

Margalit, Avishai (1996), The Decent Society, Cambridge, Mass.: Harvard University Press.

Ritter, David (1996) ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis[1996] SydLawRw 1; ,’ 18 Sydney Law Review, 5-33

Stanner, W.E.H. (2009), The Dreaming and Other Essays, Melbourne, Black Inc Books.

van Krieken, Robert (2000) ‘From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship,’[2000] UNSWLawJl 3; (2000) 23 University of New South Wales Law Journal 63-77.

Windschuttle, Keith (2002), The Fabrication of Aboriginal History, volume 1.

Windschuttle, Keith (2009), The Fabrication of Aboriginal History, volume 3.

Cases:

Mabo and others v Queensland (No 2) (1992) 175 CLR 1

Milirrpum v Nabalco Pty.Ltd, (1971) 17 FLR 141

Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1

[1] I am grateful to Sean Brennan, Christopher Cordner, Rai Gaita, and Jeremy Webber for extremely helpful comments on earlier drafts of this chapter.
[2] See Dixon 1965 and my discussion (Krygier 1986).

Martin Krygier is Gordon Samuels Professor of Law and Social Theory at the University of New South Wales, and Adjunct Professor at the Regulatory Institutions Network, Australian National University.