Justice Claims in Colonial Contexts: Commissions of Inquiry in Historical Perspective

Abstract.

This paper considers the ways in which commissions of inquiry, as historical antecedents to the contemporary transitional justice mechanism of the truth commission, have been employed by colonial and former colonial powers in the past and present. Engaging with three commissions of inquiry undertaken by colonial and former colonial authorities regarding the Morant Bay Rebellion (1865), Rwandan genocide (1997) and the Coranderrk Aboriginal Reserve (1881), we demonstrate how commissions of inquiry can function to limit legal and political recognition of the underlying inequality of colonial relations and the need for broader structural reform. Despite this, we indicate the possibilities that remain in the articulation of claims to commissions of inquiry, which can open up spaces for structural injustices to be openly brought to the fore and put on record.

Notes

1 Hayner Priscilla B ‘Fifteen Truth Commissions, 1974–1993: A Comparative Study’ in Kritz Neil J (ed.) Transitional Justice: How Emerging Democracies Reckon with Former Regimes United States Institute of Peace Washington 1995 p 225 at 227.

2 See, for example, Hayner Priscilla B Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions 2nd ed Taylor and Francis Hoboken 2011 which provides an overview of truth commissions, starting in the 1970s/late twentieth century at xi–xii.

3 See, for example, Rotberg Robert I and Thompson Dennis (ed.) Truth v. Justice: The Morality of Truth Commissions Princeton University Press Princeton 2000.

4 The ‘Minutes of Evidence’ project is a collaboration between Indigenous and non-Indigenous education experts, performance artists, academics and government and community organisations. It is funded by an Australian Research Council Linkage grant with substantial support from 13 partner organisations. See <http://minutesofevidence.com.au>. The project partners are: The University of Melbourne, Ilbijerri Theatre Company, La Mama Theatre, The Department of Education and Training (Victoria), VicHealth, Creative Victoria, The Koorie Heritage Trust, The Victorian Aboriginal Education Association, Regional Arts Victoria, The State Library of Victoria, Deakin University, The University of Sussex, Royal Holloway University of London. Through research, performance and education, the project seeks to promote new and collaborative ways of understanding Australia's past and engaging with historical injustice and envisaging a structural justice. It examines how notions of justice have been formulated, invoked and confronted over time and place, and how the enduring legacies of past injustices continue into the present — despite official responses designed to redress them — so as to foster new ways of thinking about structural justice in the present and future.

5 Wolfe Patrick ‘Nation and MiscegeNation: Discursive Continuity in the Post-Mabo Era’ (1994) 34 Social Analysis 94; Wolfe Patrick ‘Land, Labor, and Difference: Elementary Structures of Race’ (2001) 106 American Historical Review 866.

6 In doing so, this paper substantially expands on an earlier conference paper. See Evans Julie and McMillan Nesam Moving On? An Interdisciplinary Analysis of Official Responses to Structural Injustice paper presented at the Australian Political Studies Association Conference, Australian National University, Canberra, 26–28 September 2011.

7 Clokie Hugh McDowall and Robinson William J Royal Commissions of Inquiry: The Significance of Investigations in British Politics Stanford University Press Stanford 1937; Lauriat Barbara ‘“The Examination of Everything”: Royal Commissions in British Legal History’ (2010) 31(1) Statute Law Review 24. 

8 For differences in the use, type and powers of commissions, including recent UN and other global inquiries, see, for example, Gilligan George ‘Royal Commissions of Inquiry’ (2002) 35(3) The Australian and New Zealand Journal of Criminology 289; Moore WH ‘Executive Commissions of Inquiry’ (1913) 13 Colombia Law Review 500; Prasser Scott and Tracey Helen (eds) Royal Commissions and Public Inquiries: Practice and Potential Connor Court Publishing Ballarat 2014; Henderson Christian ‘Commissions of Inquiry: Flexible Temporariness or Permanent Predictability?’ (2014) 45 Netherlands Yearbook of International Law 287; Van den Herik Larissa J ‘An Inquiry into the Role of Commissions of Inquiry in International Law: Navigating the Tensions between Fact-Finding and Application of International Law’ (2014) 13(3) Chinese Journal of International Law 507.

9 See, for example, Gosnell Harold F ‘British Royal Commissions of Inquiry’ (1934) 49(1) Political Science Quarterly 84; Hodgetts J E ‘The Role of Royal Commissions in Canadian Government’ in Hodgetts J E and Corbett D C (eds) Canadian Public Administration MacMillan Co of Canada Toronto (1960) 471; Hallett Leonard Arthur Royal Commissions and Boards of Inquiry: Some Legal and Procedural Aspects Law Book Co Sydney 1982; Campbell Enid Contempt of Royal Commissions Monash University Clayton 1984; Prasser Scott Royal Commissions and Public Inquiries in Australia LexisNexis Chatswood 2006; Inwood Gregory J and Johns Carolyn M Commissions of Inquiry and Policy Change: A Comparative Analysis University of Toronto Press Toronto 2014.

10 Prasser as above at 6. See also Prasser and Tracey above note 8 at viii.

11 Smith Joshua Toulmin Government by Commissions Illegal and Pernicious: The Nature and Effects of All Commissions of Inquiry and Other Crown-Appointed Commissions: The Constitutional Principles of Taxation and the Rights, Duties and Importance of Local Self-Government S Sweet London 1849; See also Frankel Oz ‘Blue Books and the Victorian Reader’ (2004) 46(2) Victorian Studies 308 at 318; Lauriat above note 7 at 28; Moore above note 8; Campbell above note 9; Pross Paul A, Christie I M and Yogis John A (eds) Commissions of Inquiry Carswell Toronto 1990; Prasser above note 8; Prasser and Tracey above note 9. 

12 Burton Frank and Carlen Pat Official Discourse: On Discourse Analysis, Government Publications, Ideology and the State Routledge & Paul Kegan Boston 1979; Ashforth Adam ‘Reckoning Schemes of Legitimation: On Commissions of Inquiry as Power/Knowledge Forms’ (1990a) 3(1) Journal of Historical Sociology; Ashforth Adam The Politics of Official Discourse in Twentieth-Century South Africa Oxford University Press New York 1990b; Gilligan above note 8; Gilligan George and Pratt John (eds) Crime, Truth and Justice: Official Inquiry, Discourse, Knowledge Willan Publishing Devon 2004; Orford Anne ‘Commissioning the Truth’ (2006) 3 Columbia Journal of Gender and Law 851; Frankel Oz ‘Hard Facts for Fun Times’ (2010) 10(3) Common-Place: The Interactive Journal of Early American Life 9; Bevernage Berber ‘Writing the Past Out of the Present: History and the Politics of Time in Transitional Justice’ (2010) 69(1) History Workshop Journal 111.

13 Burton and Carlen as above at 49.

14 Ashforth (1990a) above note 12 at 1.

15 Ashforth (1990a) as above at 9.

16 Gilligan and Pratt above note 12; Gilligan above note 8 at 289; Lauriat above note 7.

17 Brown David ‘Royal Commissions and Criminal Justice: Behind the Ideal’ in Gilligan and Pratt above note 12; See New South Wales Royal Commission into the New South Wales Police Service Wood Royal Commission Report NSW Royal Commission into the New South Wales Police Service Sydney 1997; for the transformative effects of the Woodward Commission in relation to Aboriginal land rights see also Aboriginal Land Rights Commission Woodward Report Australian Government Publishing Service Canberra 1974.

18 Gilligan and Pratt above note 12 at 6.

19 Stenning Philip and LaPrairie Carol ‘“Politics by Other Means”: The Role of Commissions of Inquiry in Establishing the “Truth” about “Aboriginal Justice” in Canada’ in Gilligan and Pratt above note 12 at 150.

20 Frankel Oz ‘The Predicament of Racial Knowledge: Government Studies of the Freedmen during the US Civil War’ (2003) 70(1) Social Research 45.

21 Marchetti Elena ‘Critical Reflection upon Australia's Royal Commission into Aboriginal Deaths in Custody’ (2005) 5 Macquarie Law Journal 103; Marchetti Elena ‘The Deep Colonizing Practices of the Australian Royal Commission into Aboriginal Deaths in Custody’ (2006) 3 Journal of Law and Society 451; Orford above note 12; Paterson Lachy ‘The Kohimãrama Conference of 1860: A Contextual Reading’ (2011) 12 Journal of New Zealand Studies 851.

22 Bevernage above note 12.

²³Frankel Oz ‘Scenes of Commission: Royal Commission of Inquiry and the Culture of Social Investigation in Early Victorian Britain’ (1999) 4(6) European Legacy 20 at 20. Frankel provides critical historical accounts of royal commissions in Victorian Britain (see Frankel above note 11; Frankel above note 20 and note 12) as well as comparative study of both countries (see Frankel Oz States of Inquiry: Social Investigations, Explorations, and Print Culture in 19th Century Britain and the United States John Hopkins University Press Baltimore 2006).

24 Frankel 1999 as above at 24.

25 Laidlaw Zoe Colonial Connections 1815–45: Patronage, the Information Revolution and Colonial Government Manchester University Press Manchester 2005.

26 Laidlaw Zoe ‘Investigating Empire: Humanitarians, Reform and the Commission of Eastern Inquiry’ (2012) 40(5) The Journal of Imperial and Commonwealth History 749.

27 See, for example, O’Connell Anne ‘The Pauper, Slave and Aboriginal Subject: British Parliamentary Investigations and the Promotion of Civilized Conduct’ (2009) 2 Canadian Social Work Review/Revue Canadienne de Service Sociale 171; Marchetti (2006) above note 21; Woenne Susan T ‘“The True State of Affairs”: Commissions of Inquiry Concerning Western Australian Aborigines’ in Berndt Roland M and Berndt Catherine H (eds) Aborigines of the West: Their Past and Their Present University of Western Australian Press Perth 1980 p 324; Andersen Chris and Denis Claude ‘Urban Natives and the Nation: Before and After the Royal Commission on Aboriginal Peoples’ (2003) 40(4) Canadian Review of Sociology and Anthropology 373; Paterson above note 21. See also Black Christine, McVeigh Shaun and Johnstone Richard ‘Of the South’ (2007) 16 (2) Griffith Law Review 299.

28 Andersen and Denis as above; Rose Deborah Bird ‘Land Rights and Deep Colonising: The Erasure of Women’ (1996) 3(85) Aboriginal Law Bulletin 6; Marchetti 2006 above note 21.

29 Bevernage above note 12 at 116.

30 For fuller discussion see Evans Julie Edward Eyre, Race and Colonial Governance Otago University Press Dunedin 2005.

31 Cited in Gorrie John Illustrations of Martial Law in Jamaica: Compiled from the Report of the Royal Commissioners Jamaica London 1867 p 1.

32 Jamaica: Report of the Jamaica Royal Commission 1866 Part I – Report, Presented to Both Houses of Parliament by Command of Her Majesty George Edward Eyre and William Spottiswoode London 1866.

33 ‘The Humble Petition of the Poor People of Jamaica and Parish of St. Ann's’ enclosed in Eyre to Cardwell no. 117 25/4/1865, CO 137/390 National Archives London 1865.

34 Above note 32.

35 Des Forges Alison ‘Leave None to Tell the Story’: Genocide in Rwanda Human Rights Watch New York 1999; Power Samantha ‘Bystanders to Genocide: Why the United States Let the Rwandan Tragedy Happen’ (2001) 288(2) Atlantic Monthly 84.

36 Suhrke Astri ‘Facing Genocide: The Record of the Belgian Battalion in Rwanda’ (1998) 29 Security Dialogue 37 at 38.

37 Borton John and John Eriksson J Lessons from Rwanda — Lessons for Today: Assessment of the Impact and Influence of the Joint Evaluation of Emergency Assistance to Rwanda Danish Ministry of Foreign Affairs Denmark 2004; Kerstens Paul ‘“Deliver Us from Original Sin”: Belgian Apologies to Rwanda and the Congo’ in Gibney Mark, Howard-Hassmann Rhoda E, Coicaud Jean-Marc and Steiner Niklaus (eds) The Age of Apology: Facing Up to the Past University of Pennsylvania Press Philadelphia 2008 p 187 at 192; van Brabant Koenraad ‘Security and Protection in Peacekeeping: A Critical Reading of the Belgian Inquiry into Events in Rwanda in 1994′ (1999) 6(1) International Peacekeeping 143 at 151.

38 Borton and Eriksson as above note in Annex 3.

39 As above.

40 As above.

41 Adelman Howard The Role of Non-African States in the Rwandan Genocide Centre for Refugee Studies York 2009 p 2; van Brabant above note 37 at 143–144.

42 Borton and Eriksson above note 37; van Brabant above note 37 at 144.

43 Belgian Senate Parliamentary Commission of Inquiry Regarding the Events in Rwanda Belgian Senate Belgium 1997 p 7; Kerstens above note 37 at 192.

44 Borton and Eriksson above note 37.

45 Belgian Senate above note 43.

46 Verhofstadt Guy Discours du Monsieur le Premier Ministre Guy Verhofstadt à l’occasion de la commemoration du 6e anniversaire du début du Génocide rwandais Kigali Rwanda 7 April 2000.

47 BBC News Excerpts: Kagame Marks Genocide 7 April 2007 <http://news.bbc.co.uk/2/hi/africa/3609001.stm> Accessed 15 April 2016.

48 de Lame Danielle ‘(Im)possible Belgian Mourning for Rwanda’ (2005) 48 African Studies Review 33 at 35; Kerstens above note 37 at 188.

49 Stoler Laura Ann ‘Imperial Debris: Reflections on Ruins and Ruination’ (2008) 23(2) Cultural Anthropology 191. Stoler's work was brought to our attention through the insightful scholarship of Mertens Charlotte Gendered Violence in the Congo: Violent Representations, Colonial Traces and Present Reconfigurations University of Melbourne forthcoming end 2016.

50 See, for example, Stanton Gregory H ‘Could the Rwandan Genocide have been Prevented?’ (2004) 6 Journal of Genocide Research 211 at 213.

51 Des Forges above note 35 at 38; Hintjens Helen M ‘Explaining the 1994 Genocide in Rwanda’ (1999) 37(2) The Journal of Modern African Studies 241 at 249–250.

52 Belgian Senate above note 43 at 10; Des Forges above note 35 at 217 and also more generally 38–39 and 199–200; van Brabant above note 37 at 149.

53 de Lame above note 48 at 35 and 38.

54 As above at 39; Kerstens above note 37 at 187.

55 Belgian Senate above note 43 at para 4.11.

56 Belgian Senate above note 43 at 9–10.

57 Kerstens above note 37 at 192.

58 Belgian Senate above note 43 at para 5.5. This linkage between the colonial past and a need for a reduced responsibility in the region in the present can also be found in the pre-genocide decision of the Belgian government to send significantly fewer soldiers to Rwanda due to ‘past and current’ ties and UN policies regarding non-neutral countries participating in peacekeeping forces (Delcroix Leo in Belgian Senate above note 43 at para 3.2.2.1).

59 Belgian Senate above note 43.

60 For a more comprehensive discussion of this apology see McMillan Nesam ‘Regret, Remorse and the Work of Remembrance’ (2010) 19(1) Social & Legal Studies 85; Negash Girma Apologia Politica: States & Their Apologies Proxy Lexington Books Lanham 2006.

61 Braeckman Colette ‘Rwanda Trial Opens Belgians’ Eyes’ BBC News 7 June 2001 <http://news.bbc.co.uk/2/hi/europe/1375603.stm> Accessed 15 April 2016.

62 Vanoost Lode ‘Interview met Ludo De Witte’ De Wereld Morgen 24 November 2014. Although the commission of inquiry did spark significant political debate its focus was elsewhere, see Bevernage Berber ‘Politieke Verontschuldigingen in Belgie. Enkele bedenkingen over een morele en politieke economie’ (2014) 129(4) Low Countries Historical Review 80.

63 Dehaene Jean-Luc cited in Bates Stephen ‘The Hidden Holocaust’, The Guardian 13 May 1999; Bevernage  as above at 82 <http://www.theguardian.com/theguardian/1999/may/13/features11.g22> Accessed 15 April 2016.

64 Bevernage Berber ‘The Past is Evil/Evil is Past: On Retrospective Politics, Philosophy of History and Temporal Manichaeism’ (2015) 53(3) History and Theory 333 at 352.

65 Bevernage as above at 352.

66 See Said Edward Orientalism Monthly Review Press New York 1989; Young Robert White Mythologies: Writing History and the West Routledge New York 1990. For critical review and analysis, see Wolfe Patrick ‘History and Imperialism: A Century of Theory, from Marx to Postcolonialism’ (1997) 102(2) American Historical Review 388; Kennedy Dane ‘Imperial History and Post-Colonial Theory’ (1996) 24(3) Journal of Imperial and Commonwealth History 345; Shohat Ella ‘Notes on the “Postcolonial”’ (1992) 31/32 Social Text 103.

67 McMillan Mark Responsibility to Complexity in Structural Justice Keynote Speech at Just Encounters: Bringing Together Education, Arts and Research State Library of Victoria, 15 August 2014 <http://www.minutesofevidence.com.au/justencounters/> Accessed 19 April 2016.

68 Balint Jennifer, Evans Julie and McMillan Nesam ‘Rethinking Transitional Justice, Redressing Indigenous Harm: A New Conceptual Approach’ (2014) 8(2) International Journal of Transitional Justice 194 at 201.

69 These were Framlingham and Lake Condah for the Gunditjmara and Kirraewurrung clans of the western district, Ebenezer mission at Lake Hindmarsh for the tribes of Wimmera and Lower Murray regions, Ramahyuk and Lake Tyers for the Kurnai tribes of Gippsland and Coranderrk for the Kulin clans of central Victoria: Barwick Diane E Rebellion at Coranderrk Issue 5 of Aboriginal History Monograph Aboriginal History Incorporated Canberra 1998 p 52. 

70 Broome Richard Aboriginal Australians: A History since 1788 Allen & Unwin Crow's Nest 2010 p 83–84.

71 See further Barwick above note 69.

72 See Nanni Giordano and James Andrea Coranderrk: We Will Show the Country Aboriginal Studies Press Canberra 2013 p 31.

73 Report of the Board Appointed to Enquire Into, and Report Upon, the Present Condition and Management of the Coranderrk Aboriginal Station, Together with the Minutes of Evidence Victoria 1882 at 10.

74 As above at 98.

75 As above at iii.

76 As above at iii.

77 As above at iv.

78 An Act to revoke in the whole or in part the Permanent Reservation under Orders in Council off certain Crown Lands and to enable such lands to be used Agricultural Village and Homestead Settlement Parliamentary Papers of Victoria 1893 no 1347 at 153.

79 Board for the Protection of the Aborigines Twentieth Report of the Board for the Protection of the Aborigines in the Colony of Victoria John Ferres Government Printer Melbourne 1884.

80 As above at 5.

81 As the Board noted in its 1884 report: ‘from the earliest period of their recollection, they may be accustomed to regard themselves as members of the community at large, and may not be constrained to carry with them through life the impression of the indolent habits and manner of their original black friends’ in Nanni and James above note 72 at 184.

82 Report of the Board above note 72 at 68.

83 As above at 9.

84 As above at 67–68.

85 As above at 9–10.

86 As above at 135–136.

87 The concept of middle ground promoting a capacity for equitable relations between different peoples was influentially explained by historian Richard White. See White Richard The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650–1815 Cambridge University Press New York 1991. See also Carter Paul ‘Public Space: Its Mythopoetic Foundations and the Limits of the Law’ (2007) 16(2) Griffith Law Review 430.

88 See, for example, Bhabha Homi The Location of Culture Routledge New York 1994; McClintock Anne Imperial Leather: Race, Gender, and Sexuality in the Colonial Contest Routledge New York 1995; Cooper Frederick and Stoler Ann Laura Tensions of Empire: Colonial Cultures in a Bourgeois World California University Press Berkeley 1997.

89 In the context of early nineteenth-century Victorian commissions of inquiry, Frankel has explored how ‘even as these inquiries confirmed and strengthen social gradations as well as hierarchies of knowledge and expertise, they nevertheless allowed British lower classes’ participation in official discourse as knowers, not just sufferers, and opened new possibilities for dissent and contestations’. Frankel Oz Vulnerable Populations and Epistemic Justice in Early Victorian Britain paper presented at International Institute for the Sociology of Law, Onati, 2–3 July 2015 at 4.