Australian Reconciliation and the Enduring Invisibility of Whiteness

ABSTRACT

INTRODUCTION

Reconciliation forms an integral component of transitional justice, as it seeks to address historical grievances and promote healing among different groups in society. Although the concept of reconciliation has been criticised by scholars for being too vague,¹ in settler colonial states like Australia and Canada, reconciliation has emerged as a key policy tool to improve Indigenous–settler relations which are characterised by ongoing conflicts relating to questions of sovereignty, self-determination and land.² Such is the case in Australia, where in response to increasing international awareness of the inequality and racism experienced by Aboriginal and Torres Strait Islander people as highlighted by the Freedom Rides, as well as in response to growing calls for a treaty from Aboriginal and Torres Strait Islander people during the 1970s and 1980s, the Australian government initiated a process of reconciliation that remains ongoing.³

Since its introduction to Australian politics in 1991, reconciliation has focused on strengthening relationships between Aboriginal and Torres Strait Islander peoples and non-Indigenous peoples.⁴ Yet in contemporary Australia, Aboriginal and Torres Strait Islander people continue to experience racism in many forms, as it remains deeply entrenched in the country’s social fabric, as highlighted in the lead-up to the 2023 referendum to establish a First Nations Voice to Parliament.⁵ The internet was littered with memes depicting Aboriginal and Torres Strait Islander people as ‘grifters,’ ‘wife beaters’ and ‘primitives,’ with the majority of Australians ultimately rejecting the notion that Indigenous peoples be given a voice and cementing racism into the body politic in the process.⁶ Despite 30 years of reconciliation attempting to address racism by encouraging all Australians to ‘understand and value Aboriginal and Torres Strait Islander and non-Indigenous cultures, rights and experiences,’ racism remains alive and well in Australia.⁷

While numerous scholars have articulated that contemporary experiences of racism and inequality in settler colonies such as Australia can be understood through the lens of settler colonialism, settler colonialism involved the creation and perpetuation of racial hierarchies that privileged white settlers over Indigenous peoples. Thus, untangling the ways that whiteness remains embedded in socio-legal structures to perpetuate settler colonialism is critical to reconciliation and the task of addressing racism and inequality in settler colonies. Accordingly, this article considers how Australian reconciliation has failed to critically engage with whiteness, understood as a set of practices and structures. To do so, I draw on the field of critical whiteness studies and Aileen Moreton-Robinson’s concept of patriarchal white sovereignty, to establish whiteness as a complex political geography that enacts boundaries of inclusion and exclusion and to establish why whiteness is critical to understanding Australia, as distinct from but intimately connected to settler colonialism. I also draw on Michael Rothberg’s figure of the implicated subject which offers possibilities for interventions without becoming trapped in victim/perpetrator or Indigenous/settler binaries. I then apply these insights to the history of reconciliation policy in Australia and in particular to the federal government’s push for constitutional recognition, including the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013, to illustrate how the failure of Australian reconciliation to critically engage with whiteness fails to address the root of contemporary racism and inequality.⁸ Finally, I sketch out the implications for transitional justice as a field more broadly and address the ever-present tensions in settler colonial contexts where the goals of transitional justice often contradict Indigenous claims. In doing so, the article advances a theoretical argument that transitional justice as a field would benefit from a more critical engagement with whiteness in settler colonial contexts.

UNDERSTANDING WHITENESS AND THE IMPLICATED SUBJECT

Although the term whiteness is often associated with skin colour, it signifies a racialised social identity that is deemed superior to other ‘races’ within a racial hierarchy. Since race is socially constructed, whiteness is not static or fixed but rather can be understood as a multifaceted, contingent and fluid positionality constituted by structural privilege and dominance in local and global power relations.⁹ Critical scholars of race, beginning with W. E. B. Du Bois, argue that any study of racism is incomplete without also looking at the role of whiteness. In his well-known work ‘The Souls of White Folk,’ Du Bois locates whiteness as originating in the historical interactions between Europe, Africa and the Americas, illustrating that whiteness functions both as an acquired sense of superiority and as a rationale for colonial exploitation and capitalist formation, since whiteness is equated with morality and the ‘the ownership of the earth.’¹⁰ Du Bois’s account of whiteness was highly influential in giving birth to critical whiteness studies (CWS), a field concerned with exposing whiteness to ‘achieve a greater racial humanity.’¹¹

Building on the word of scholars like Du Bois, CWS scholars contend that race is a socially, economically and politically constructed category in which racial groups are mutually constituted through processes of normalisation. In this construct, whiteness refers not only to the individuals who are socially categorised as white within a racialised society.¹² CWS scholars also theorise whiteness as a set of practices and structures that maintain a racial hierarchy and that developed as a direct consequence of the slave trade, providing the ideological framework to justify and normalise colonialism, European domination, slavery and the expansion of white sovereignty wherein white people are positioned at the normative centre.¹³ Matias et al. argue that ‘white culture, ideology, racialization, expressions and experiences, epistemology, emotions, and behaviors’ have become the norm.¹⁴ The manifestation and normalisation of whiteness in turn produces what Edward Said refers to as ‘the Other,’ a concept that highlights how racial differences are constructed and utilised to justify domination and inequality.¹⁵ Therefore, the objective of studying whiteness is to purposefully and precisely reveal how it harms racialised people by exposing how whiteness is centralised, normalised and maintained in society through everyday practices.¹⁶

In terms of how whiteness continues to be centralised, normalised and maintained in Australia despite reconciliation, the work of Aileen Moreton-Robinson is instructive and also demonstrates why Australian reconciliation should also be understood through the lens of whiteness, rather than solely settler colonialism. Moreton-Robinson argues that settler colonialism involved the creation and perpetuation of racial hierarchies that privileged white settlers over Indigenous peoples.¹⁷ Whiteness became a marker of superiority, entitlement to land and civilisation. The racial hierarchy was later codified in laws, policies and social norms that marginalised Indigenous peoples and other non-white groups, often denying them rights, access to resources and equitable treatment, thereby enacting boundaries of inclusion and exclusion. Building on the central tenet of settler colonial studies, that ‘territoriality is settler colonialism’s specific, irreducible element,’ Moreton-Robinson articulates that the process of settler colonialism was justified through ideologies that framed white settlers as bringing civilisation and development to lands that were deemed terra nullius (meaning land belonging to no one), ignoring Indigenous peoples’ pre-existing relationships with and claims to the land.¹⁸ The concept of private property and land ownership introduced by settlers was deeply intertwined with whiteness, as these legal and social structures were designed to benefit and empower white settlers. As such, white people were recognised within law as property-owning subjects while Indigenous peoples were deemed both propertyless and property.

To explicate how the boundaries of inclusion and exclusion operate in relation to property, Moreton-Robinson also introduces the concept of patriarchal white sovereignty, a regime of power that originates in the illegal act of possession and operates to protect white property interests through diminishing Indigenous entitlements.¹⁹ Patriarchal white sovereignty is characterised by a possessive logic, which is a ‘mode of rationalization based on an excessive desire to invest in the reproduction and maintenance of the Australian nation-state’s sovereignty, control and domination.’²⁰ Racism and structural inequality are constitutive of the settler colonial state and its ideological, material and institutional mooring in racial whiteness is the locus of patriarchal white sovereignty. Put simply, settler colonialism is enabled by and operates to safeguard patriarchal white sovereignty. Thus, settler colonialism is intimately intertwined with whiteness such that if we are to reconcile Indigenous–settler relations, we must also critically engage with whiteness and how the possessive logic of patriarchal white sovereignty is imbricated in contemporary socio-legal structures that perpetuate the racist denial of Indigenous sovereignty on which the settler state is founded.

The presence of racialised minorities in settler colonies necessarily complicates the concept of whiteness and the Indigenous/settler binary that is central to settler colonial studies.²¹ Indeed, Patrick Wolfe, who is often credited with establishing the field of settler colonial studies, insisted that settler colonialism is structured around a binary division between non-Indigenous settlers and Indigenous peoples, a binary that operates irrespective of major differentiations within settler societies.²² Likewise, McEvoy contends that transitional justice often holds to the victim–perpetrator binary, effectively overlooking the fact that many individuals, while not directly responsible, are implicated in systems of injustice.²³ However, as Fung eloquently articulates, by isolating racialised minorities from their role and complicity in benefiting from and perpetuating patriarchal white sovereignty, settler colonial studies inhibits a nuanced understanding of settler identity by normalising the idea of settler dominance as inherently linked to whiteness.²⁴ Expanding the concept does not necessarily imply that migrants and newcomers bear the same responsibility as original colonisers, but it highlights the complexity of their position within a settler colonial context. They can be both marginalised by dominant society and, at the same time, implicated in the structures of patriarchal white sovereignty that continue to deny Indigenous sovereignty. Accordingly, Fung contends that it is crucial for settlers, migrants and newcomers alike to ‘unsettle’ their entitlements to Indigenous lands and to examine the ways that each contribute to the dispossession of Indigenous lands and the disavowal of Indigenous sovereignty.²⁵

In this regard, Michael Rothberg’s figure of the implicated subject offers a new way of considering responsibility that breaks down the binary distinction between victim and perpetrator, or in this case between Indigenous and settler.²⁶ Rothberg’s framework explicates the ways that individuals contribute to and benefit from historical as well as present-day injustices through their positioning as implicated subjects, rather than merely as victims of, bystanders to or the actual perpetrators of injustice. As Rothberg states, implicated subjects ‘play essential roles in producing and reproducing violence and inequality.’²⁷ In settler colonial contexts, implicated subjects occupy a position of privilege and power without necessarily being direct agents of harm; they contribute to, inhabit, inherit or benefit from patriarchal white sovereignty but did not create it.²⁸ For example, Saranillio contends that although migration itself is not synonymous with colonialism, migrating to a settler colonial context means that the political agency of migrants can reinforce the colonial system established by white settlers ‘since the avenues laid out for success and empowerment are paved over Native lands and sovereignty.’²⁹ However, the implicated subject is not an ontological identity but rather it is a position that is occupied in relation to power. In this way, the figure of the implicated subject complicates whiteness by highlighting how racialised minorities are nevertheless entangled in systems of power that benefit them at the expense of Indigenous sovereignty. It is with this more nuanced understanding of whiteness in mind that I examine how Australian reconciliation fails to address racism by maintaining patriarchal white sovereignty. In the following section, I briefly describe the development of reconciliation in Australia to provide the necessary background for later analyses.

THE BIRTH OF RECONCILIATION IN AUSTRALIA

Although a detailed overview of the politics of reconciliation in Australia both is outside the scope of this article and has been done by other scholars,³⁰ the following provides a brief background and overview of the development of reconciliation policy since its inception. When the British arrived and invaded the lands and seas now known as Australia, they declared the land terra nullius (Latin for land belonging to no one) and proceeded to claim it on behalf of the British Empire despite direct encounters with Indigenous peoples that made clear the land was indeed occupied. Despite instructions to take possession of the land ‘with the consent of the Natives,’ no treaties or agreements were concluded with Aboriginal and Torres Strait Islander peoples.³¹ Indigenous people were deemed propertyless and the British claimed the land as a white possession. What followed was the purposeful decimation of Indigenous peoples, their cultures, languages and lands, which can only be described as genocide.³² Through policies of assimilation, displacement, exclusion and discrimination, Aboriginal and Torres Strait Islander peoples were over the course of the 19th and 20th centuries forcibly removed from their lands, and an estimated one in three Indigenous children were forcibly removed from their families and cultures between 1910 and the 1960s in what became known as the Stolen Generations.³³

Amidst the growing consciousness of human rights across the globe during the 1960s and 1970s, Australians became increasingly aware of the disadvantage and racism experienced by Aboriginal and Torres Strait Islander people, which was viscerally highlighted in the 1965 Freedom Ride.³⁴ It is against this historical backdrop that, in April 1979, the National Aboriginal Conference, a national organisation established by the federal government to represent Indigenous Australians and to advise the government on issues of concern to Indigenous Australians, advocated that ‘a Treaty of Commitment be executed between the Aboriginal nation and the Australian government.’³⁵ In March 1981, the Minister for Aboriginal Affairs delivered the government’s official response to the proposals contained in the report, which noted that any agreement ‘must reflect the special place of Aboriginal and Torres Strait Island people within Australian society as part of one Australian nation’ and that the government ‘cannot legitimately negotiate anything which might be regarded as a “treaty”, implying as it does an internationally recognised agreement between two nations.’³⁶ Later, in 1983, a Senate Standing Committee report investigating the feasibility of a treaty between the Commonwealth and Aboriginal people concluded that

The attitudes held by non-Aboriginal Australians towards Aboriginal and Torres Strait Island people and vice-versa lie at the heart of the situation and, until they can be properly oriented, a compact, no matter what its form and content, will at best only create superficial improvement.³⁷

Although further calls for a treaty followed, the Senate Standing Committee’s conclusion was ultimately adopted by politicians and subsequent political speeches began to emphasise the importance of education, attitudinal change and reconciliation as necessary precursors to a treaty.³⁸ Subsequently, in 1991 the Parliament of Australia unanimously passed the Council for Aboriginal Reconciliation Act (Cth) 1991, formally launching reconciliation in Australia and establishing the Council for Aboriginal Reconciliation (CAR) which was charged with educating the wider Australian community about reconciliation.³⁹ In the years following its establishment, the CAR implemented a wide-ranging media and communications programme aimed at promoting reconciliation and cultural awareness through public education.⁴⁰ In its final report at the end of its 10-year lifespan, the CAR described the treaty as ‘an unresolved issue of reconciliation’ and recommended that the federal parliament prepare legislation for a referendum which seeks to recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia in a new preamble to the Constitution and to enact legislation to initiate the process of negotiating a treaty.⁴¹ In line with its 10-year mandate, the CAR was disbanded, and Reconciliation Australia was established to continue the work of furthering reconciliation.

Reconciliation Australia maintained the CAR’s focus on educating the public and continued to push for constitutional recognition in line with the CAR’s final report, including leading a campaign for constitutional recognition from 2012 and 2017 during which time the Commonwealth Parliament passed the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (hereafter the ATSIPR Act). The ATSIPR Act recognised Aboriginal and Torres Strait Islander peoples as the first inhabitants of Australia and provided for the establishment of a review of the readiness of the Australian public to support a referendum giving constitutional recognition to Aboriginal and Torres Strait Islander people. Since passing this legislation and with a change of government, the federal government committed to implementing the Uluru Statement from the Heart to initiate the process of establishing a constitutionally enshrined Voice to Parliament and creating a Makarrata Commission to oversee truth-telling and treaty talks, although the proposal for a Voice to Parliament was ultimately defeated through a referendum in October 2023.⁴²

It is clear from this brief outline that Australian reconciliation emerged as a political compromise and alternative to calls for a treaty, which in Short’s words, ‘had significant resonance with politicians seeking a legitimate image on the international stage,’ but which was considered too taboo and divisive at the time.⁴³ In attempting to respond to Indigenous calls for justice, the ‘semantic ambivalence’ of reconciliation provided a convenient alternative to politicians ‘anxious to indefinitely defer the recognition of Indigenous sovereignty.’⁴⁴ Subsequently, as politicians began to emphasise the importance of education and attitudinal change amongst non-Indigenous Australians,⁴⁵ reconciliation became a policy of encouraging non-Indigenous Australians to learn about Aboriginal and Torres Strait Islander peoples and their cultures as well as their disadvantage, but not about how settlers are implicated in the maintenance of patriarchal white sovereignty which produces Indigenous disadvantage in the first place. As Ben Wadham poignantly notes, ‘the focus is located upon the disadvantaged, dispossessed Aboriginal. Racial cognisance, in this context, neglects the focus upon oneself and one’s whiteness as central to the construction of Aboriginal reconciliation.’⁴⁶ In the next section, I explicate in greater detail how reconciliation has failed to engage with whiteness before analysing how the ATSIPR Act maintains patriarchal white sovereignty.

RECONCILIATION AND ITS FAILURE TO ENGAGE WITH WHITENESS

In terms of how Australian reconciliation has failed to engage with whiteness, Gunstone argues that two significant practices of whiteness limited the potential of the reconciliation process; the emphasis placed on a single national identity and the marginalisation of non-nationalist issues of concern to Indigenous people, such as treaty and sovereignty.⁴⁷ Several publications from the CAR emphasised Australia as ‘one nation’ under the guise of formal equality, referring to Indigenous peoples as ‘the nation’s first peoples,’ as ‘first Australians’ and as the ‘first peoples of Australia.’ Likewise, reconciliation advocate, Father Frank Brennan, wrote that

it would be better for all Australians … if we could go into the next millennium committed to the legacy of ‘one land, one nation.’ Our shared commitment to the nation would forge a strong identity and secure a place for all who belong on this continent.⁴⁸

In order to advance the notion of one nation, the formal reconciliation process attempted to appropriate Indigenous culture into the wider Australian culture. For example, the CAR’s Key Issues Paper encourages non-Indigenous Australians to identify with Indigenous peoples’ connection to land.⁴⁹ As part of the ‘one nation’ focus, politicians employed the notion of formal equality which remains one of the five key domains of reconciliation. Former Prime Minister John Howard rejected the notion of ‘special rights’ as an afront to the ‘Australian sense of equality’ and a ‘fair go.’⁵⁰ The CAR reflected this notion of a single, reconciled nation, concluding in its final report that ‘reconciliation is vital for Australia’s future as a mature, harmonious nation.’⁵¹ Over a decade later, such rhetoric continues to permeate public discourse, as reflected in a 2019 opinion piece written in the conservative newspaper the Sydney Morning Herald that invoked the notion of formal equality to argue that the proposed Voice to Parliament was a violation of equality.⁵² Indeed, the notion that the Voice to Parliament is divisive and undemocratic had a powerful hold over the public in the lead-up to the referendum.⁵³

While the notion of formal equality may seem race-neutral, as Quayle and Sonn argue it reflects an abstract liberalism that denies the reality of racism.⁵⁴ That is, while the principle of formal equality may resonate with non-Indigenous people, it reflects a position of dominance and privilege, ‘a particular understanding of how Australian society (and its citizens) does (and ought to) function,’ that denies the history of colonisation and structural racism that continues to shape the lives of Indigenous people and has created an inherently unequal playing field. It therefore can be understood as a rhetorical device that reinforces and maintains dominance and privilege, because it allows whiteness and the possessive investment in patriarchal white sovereignty to hide behind a veneer of ‘equality.’ One only need to recall that the ‘proclamations of the equal rights, autonomy, and freedom for all men’ went hand in hand ‘with the massacre, expropriation, and subjection to hereditary slavery of men at least apparently human.’⁵⁵ The false rhetoric of equality thus demonstrates how white knowledge positions itself as universal to maintain power over Indigenous peoples. Accordingly, reconciliation’s focus on educating non-Indigenous people about Indigenous people, without addressing their own position as implicated subjects within settler colonialism, inhibits the effectiveness of reconciliation because it provides an incomplete understanding of the complexity of colonisation and of reconciliation. In turn it can engender a sense of detachment and lack of accountability and thereby fail to address existing power dynamics.

The rhetoric of equality and one nation was also contained in the ATSIPR Act. Following decades of talk about constitutional recognition, in 2010 the government established an Expert Panel to investigate constitutional recognition.⁵⁶ By this time, some state Parliaments had amended their Constitutions so Indigenous peoples were already sceptical of the potential for recognition to substantially transform the settler-colonial relationship and achieve justice.⁵⁷ The Expert Panel, consisting of Indigenous and non-Indigenous leaders and experts, was tasked with conducting extensive community consultations and presenting a report to the government on potential options for constitutional recognition. The Expert Panel presented its report to the government in 2012, recommending the deletion of the race power in Section 51(xxvi) of the Constitution and that it be replaced with a provision recognising Aboriginal and Torres Strait Islander peoples as the first inhabitants, acknowledging their continuing relationship to land and respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.⁵⁸ Following the Expert Panel’s report, Prime Minister Julia Gillard suggested that an Act of Recognition be passed through Parliament as an interim step to ‘foster momentum’ for a referendum on constitutional recognition.⁵⁹ Subsequently, on 12 March 2013 the federal Parliament passed the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (the ATSIPR Act), providing the following recognition:

(1) The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.

(2) The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

(3) The Parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.⁶⁰

The dispossession of Aboriginal and Torres Strait Islander peoples from their lands and the denial of Indigenous sovereignty are foundational to Indigenous peoples’ claims of injustice and the ‘unfinished business’ of reconciliation. While recognition, at least in theory, offers the chance to rectify the harms of colonisation, the framing of the ATSIPR Act ultimately perpetuates a possessive investment in patriarchal white sovereignty. Notably, the Act does not recognise Indigenous ownership of the lands and waters now known as Australia, only that they occupied the lands and waters. Once again, Indigenous peoples are deemed propertyless. Additionally, the recognition of Indigenous peoples’ relationship with traditional lands relegates their connection to land to the past. As Moreton-Robinson argues, recognition of

‘traditional lands’ is simultaneously a reminder and a denial of the existence of Indigenous sovereignty.⁶¹ The reminder is evidenced by the presence of Indigenous bodies, but its denial is contained in the words ‘traditional lands,’ which transports ownership back into the past, not the continuing present.⁶²

There is also no explicit acknowledgement that Indigenous peoples were dispossessed and by whom and that the land was claimed under the false doctrine of terra nullius, such that there is no accountability or recognition of the position of non-Indigenous Australians as implicated subjects in the ongoing denial of Indigenous sovereignty. Instead, the ATSIPR Act maintains the possessive investment in patriarchal white sovereignty by failing to acknowledge Indigenous sovereignty, effectively placing a ‘colonial ceiling’ on Indigenous aspirations.⁶³

Critical Indigenous theorist Glen Coulthard also contends that recognition of Indigenous peoples is premised on an assumption of the legitimacy of the settler state’s claim to sovereignty over Indigenous people and their territories on the one hand, and the normative status of the state-form as an appropriate mode of governance on the other.⁶⁴ The approach of Australian reconciliation, as illustrated in the ATSIPR Act, has been to focus on incorporating Aboriginal and Torres Strait Islander peoples into the nation state, which points to the continuity of oppressive and hegemonic ways of knowing and relating to Aboriginal and Torres Strait Islander people. As Pollock points out, in many of the recommendations put forth by the Expert Panel and similar bodies, recognition is ‘consistently presumed as a one-way act without requirement of the settler-State or settler-society to be recognised within (let alone recognise) First Peoples’ legal and jurisprudential systems.’⁶⁵ The fact that Indigenous peoples are not called on to recognise the settler state indicates that the legitimacy of the settler state remains unquestioned, effectively preserving patriarchal white sovereignty while continuing to deny Indigenous sovereignty.

However, it was clear from the establishment of the Expert Panel that the question of sovereignty was off the table and that the government would limit the scope of recognition so as to protect patriarchal white sovereignty. The Expert Panel’s terms of reference aimed to ensure that the proposal put forward would ‘contribute to a more unified and reconciled nation.’⁶⁶ Yet the emphasis on one nation reflected in reconciliation rhetoric is directly at odds with Indigenous calls for a treaty which seeks to recognise the sovereign status of Indigenous peoples. Indeed, Australia has never been one nation, but rather a continent of many First Nations that existed for millennia before the British arrived. Therefore, the emphasis on equality and ‘one nation’ discursively positions Aboriginal and Torres Strait Islander peoples within multiculturalism, wherein Indigenous people can contribute to and be included in the nation but Indigenous sovereignty will not be acknowledged because it is a threat to patriarchal white sovereignty.⁶⁷ In this sense, sovereignty is reserved for the settler nation, and this is particularly apparent in the ATSIPR Act which reasserts the nation as a white possession by sidestepping the issue of Indigenous sovereignty.

The terms of reference also prevented the Expert Panel from exploring options that would properly address Aboriginal and Torres Strait Islander people’s demands for justice, as the idea of recognising Indigenous sovereignty remained a taboo and divisive idea. The Expert Panel explicitly acknowledged as much, noting in its final report that

any proposal relating to constitutional recognition of the sovereign status of Aboriginal and Torres Strait Islander peoples would be highly contested by many Australians, and likely to jeopardise broad public support for the Panel’s recommendations. Such a proposal would not therefore satisfy at least two of the Panel’s principles for assessment of proposals, namely ‘contribute to a more unified and reconciled nation,’ and ‘be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums.’⁶⁸

Accordingly, the type of recognition proposed by the Expert Panel and reflected in the ATSIPR Act provides Aboriginal and Torres Strait Islander peoples with ‘a right to be incorporated into the Australian nation but not a right to refuse.’⁶⁹ The fact that the recognition of Indigenous sovereignty remained a taboo and divisive notion after three decades of education and raising public awareness indicates the failure of Australian reconciliation to create an understanding of how all non-Indigenous Australians are implicated subjects, allowing individual investments in patriarchal white sovereignty to remain invisible.⁷⁰ In this regard, the journey of Australian reconciliation leading up to the ATSIPR Act can be viewed not as a reversal of settler colonial rule over Indigenous peoples, which is inherently predicated on whiteness, but as an extension of it. The ATSIPR Act highlights the state’s misrecognition of Aboriginal and Torres Strait Islander people’s claims, revealing how the Act is positioned to continue this misrecognition by circumscribing legal dimensions of Indigenous subjecthood.⁷¹

Despite resistance from Aboriginal and Torres Strait Islander people against the type of symbolic recognition contained in the ATSIPR Act,⁷² Pollock suggests that the movement for constitutional recognition gained traction among non-Indigenous people because it appealed to their moral consciousness by advocating the notion that constitutional recognition was not just something that the vast majority of Aboriginal and Torres Strait Islander people wanted, but that it would also improve the material conditions of Indigenous communities and push the nation closer to reconciliation.⁷³ Accordingly, Pollock characterises recognition, as contained in the ATSIPR Act, as ‘overwhelmingly performative and targeted toward settler interests and anxieties’ rather than a meaningful recognition of Indigenous peoples’ political aspirations.⁷⁴ It is performative because it requires only that non-Indigenous people support recognition rather than make any substantive structural change. Instead, it ‘serves to distance non-Indigenous Australians from their own role in reconciliation’ and specifically, from their position as implicated subjects in the maintenance and reproduction of patriarchal white sovereignty.⁷⁵

IMPLICATIONS FOR TRANSITIONAL JUSTICE

As the analysis above illustrates, without tending to the reproduction of whiteness, transitional justice risks perpetuating the very logics that drive settler colonialism which are rooted in a racial hierarchy aimed at securing property for the white nation. In this regard, Australian reconciliation demonstrates that in settler colonial settings, transitional justice would be more effective by directly engaging with whiteness, and more specifically patriarchal white sovereignty, as well as the role of implicated subjects which necessarily complicates the notion of whiteness. Rothberg’s figure of the implicated subject does not necessarily make this task easier. Indeed, he notes that ‘the implicated subject represents, above all, not a solution but a problem. Implicated subjects inhabit the machinery of political violence, economic exploitation, and ecological devastation.’⁷⁶ However, the implicated subject makes visible the necessary task of addressing individual accountability in ways that transcend the victim/perpetrator binary often embedded in transitional justice, which is necessary given that settlers, whether original or more recently arrived, benefit from the dispossession of Indigenous lands, albeit with varying degrees of complicity. Addressing individual accountability begins with critical self-awareness, but it must not end here or else it risks reifying whiteness and becoming ‘a practice of self-aggrandising narcissism,’ which is a central criticism of CWS.⁷⁷ As Rothberg states

if there is a potential ‘solution’ in positing the existence of an implicated subject … it derives from the impetus to combat and transfigure implication by self-consciously grasping one’s position as an implicated subject and joining with others in collective action [towards disrupting the dominance of patriarchal white sovereignty].⁷⁸

However, disrupting the dominance of patriarchal white sovereignty poses numerous challenges for the field of transitional justice, not least given its predominant focus on strengthening state legitimacy. As numerous scholars have highlighted, transitional justice in settler colonial contexts can do ‘more to obscure and de-legitimize Indigenous nationhood and settler colonialism’ than to provide effective redress.⁷⁹ Since settler colonialism is rooted in the creation and perpetuation of racial hierarchies that deemed Indigenous peoples as propertyless, as argued by Moreton-Robinson, reconciliation with settler colonialism cannot be the end-goal of transitional justice. Instead, scholars argue that transitional justice must engage a decolonial, Indigenised, radical and even ecocentric model of transformative justice to address colonial harms and their ongoing impacts.⁸⁰ What is largely absent from their work is the need to engage with whiteness. However, since racism is central to the foundation of colonial harms, this article illustrates that it is also necessary to critically engage with whiteness and the role of implicated subjects in the maintenance of patriarchal white sovereignty, otherwise we risk pursuing forms of reconciliation and recognition that preserve the colonial status quo, as has occurred in Australia.

Certainly, this creates challenges for the field of transitional justice, reflecting what Leeblaw terms the ‘irreconcilable goals of transitional justice.’⁸¹ While transitional justice processes such as Australian reconciliation may contribute towards increased avenues for accountability and reform, they do not necessarily advance the long-term political aspirations of Indigenous peoples. This tension cannot necessarily be resolved. Indeed, decolonial scholars argue that decolonisation is a ‘tangible unknown,’⁸² such that it is necessarily unsettling.⁸³ Thus, if transitional justice scholars and practitioners are to embrace a decolonial approach that also critically addresses whiteness, the outcome cannot be predetermined. Instead, it requires ‘a constant (re)negotiating of power, place, identity and sovereignty.’⁸⁴ In this regard, Australian reconciliation and those that are implicated subjects must also embrace uncertainty, such that we cannot assume the ‘unfinished business’ of reconciliation will ever be finished.

CONCLUSION

The origins of Australian reconciliation as a political compromise and alternative to a treaty reflect a desire to defer recognition of Indigenous sovereignty, instead focusing on education and attitudinal change amongst settler Australians. However, a lack of meaningful engagement with whiteness and the role of implicated subjects in the maintenance and reproduction of patriarchal white sovereignty means that Australian reconciliation has failed to address the origins of racism, inequality and injustice which are rooted in the dispossession of Indigenous lands. Accordingly, transitional justice and reconciliation processes would benefit from a more explicit and critical engagement with whiteness in settler colonial contexts to unsettle the dominance of patriarchal white sovereignty. By engaging the notion of implicated subjects, transitional justice can move beyond the victim/perpetrator binary to examine how people benefit from and contribute to ongoing settler colonialism and to effectively challenge patriarchal white sovereignty. As Nicoll aptly states, ‘there is an important difference between white people knowing what Indigenous sovereignty is, on the one hand, and knowing what white sovereignty does to Indigenous rights, on the other.’⁸⁵ A critical engagement with whiteness will enrich efforts towards transformative justice in settler colonial contexts.

Footnotes

Author notes