Justice in Indigenous Land Claims: A Typology of Problems

Different understandings of indigeneity have been used to justify who receives reparations or acknowledgment of historic injustices in white settler nations. This article seeks to interrogate definitions of indigeneity used in contemporary Australian land claims, with the aim of challenging the state’s legislative and judicial responses to indigenous Australians. Drawing on key legislative and judicial responses to indigenous Australians since the 1970s, I identify and analyze five problems generated by these responses: the problem of evidence, the problem of articulation, the problem of authenticity, the problem of character and the problem of legitimacy. Naming and characterizing these problems indicates the extent to which injustices against indigenous Australians are perpetuated through discourses based on poorly constructed legal definitions. It also generates certain ethical responses, such as the necessity for a more critical assessment of the role of the state in shaping discourses around indigeneity. I argue that identifying and addressing these five problems might result in recognizing indigenous alterities in ways that will engender new practices of justice.

To the Australian courts … the Yorta Yorta peoples were not sufficiently Aboriginal to get one square meter of what was left over after the whites had taken all that they wanted. (Pearson 2003, 2)