11 Confounded by recognition
The apology, the High Court and the
Aboriginal Embassy in Australia
Paul Muldoon and Andrew Schaap
In postcolonial states reconciliation processes can be understood as attempts to
redress historical injustices arising from misrecognition. Reconciliation begins, or
rather an appreciation of the need for it arises, with the acknowledgement of the
denigration of the identity of Indigenous peoples. It is only when past practices
are negatively re-evaluated in light of contemporary norms – norms based upon
and a new appreciation of the value of Indigenous culture – that postcolonial
states are drawn towards making symbolic and material reparations for historical
mistreatment. In this context, reparations serve the dual function of making
amends for the past and restoring trust in the institutions of the state. By initiating
a process of reconciliation, the postcolonial state undertakes to do whatever can
still reasonably be done to restore dignity to the victims of injustice. At the same
time, it seeks to restore legitimacy to its own institutions by disavowing the racial
or ethnocentric assumptions that led to discrimination in the past. To the extent
that these belated acts of recognition help to heal the past away, reconciliation
provides a new beginning for the postcolonial state, the true measure of which is
the degree of unity evident in the population.
Generally speaking, however, none of this occurs without a bitter struggle.
Attempts by identity groups to stake ‘claims for recognition’ – which, in this
case, means recognition as ‘victims’ of certain hegemonic cultural practices –
have tended to spark ‘culture wars’ in which the extent of the harm, the nature
of the wrong and the appropriate mode of redress are all contested. Despite the
fact that their telos lies in consensus, reconciliation processes tend to be of an
agonistic nature precisely because they open up a space of contestation and
disagreement in relation to the claims identity groups make as victims of injustice.
Such disagreement is not, of course, inherently problematic. As Duncan Bell has
noted, ‘the struggle over interpretations of the past comprises a core dimension of
agonistic politics’ and provides a necessary corrective to unitary conceptions of
collective memory (Bell 2008: 151). When questions of reparations are at stake,
however, such contestation must eventually give way, even if it is not brought to
a close, to a governmental decision (e.g. whether to apologise, pay compensation,
recognize land rights). Public processes of reconciliation might thus reasonably
be characterised as forms of civic contestation and adjudication in relation to the
harms of the past. Positioning itself in the role of mediator, the postcolonial state
Confounded by recognition 185
enacts reconciliation as a way of establishing a consensus about the nature and
meaning of Indigenous suffering.
Reconciliation processes can provide productive ways of responding to the
ongoing legacy of colonial practices of dispossession and assimilation. Yet, in
focusing upon the victim of injustice rather than the agent of injustice, such
processes risk entrenching the view of the state as a neutral arbiter and diverting
attention from the underlying source of identity-based harms. In line with Patchen
Markell’s more general critique of the politics of recognition, a potential problem
with processes of reconciliation is that the meaning of misrecognition is only
examined in relation to those who suffer it, not in relation to those who commit
it. This leaves it open to treat misrecognition as an ‘unfortunate fact’, attributable
to outdated belief systems, rather than interrogating its deeper sources in the
desire for identity itself (Markell 2003: 21). Put differently, the transformative
potential of the politics of reconciliation in postcolonial states might not lie in the
recognition and reparation of indigenous suffering (though these are by no means
insignificant). Rather it might lie in exposing the deeper sources of misrecognition
in the identity-making practices of the colonial state itself. Viewed in a more
antagonistic light, claims for the recognition of suffering present a challenge to
existing social relations, not because their satisfaction requires the postcolonial
state to engage in extraordinary acts of supplication but, because they draw
attention to the deeper sources of misrecognition in the desire for sovereign unity.
In this chapter we seek to draw out some of the more agonistic (and
antagonistic) dimensions of the demand for recognition by looking at the politics
surrounding the two identity-based harms tangled up in the reconciliation debate
in Australia: the removal of Aboriginal children from their families and the denial
of Aboriginal sovereignty. As it unfolded in the 1990s, the reconciliation process
gradually became identified with the tragedy of the ‘Stolen Generations’ and the
poverty of the official response to the findings of Bringing Them Home, a report
by the Human Rights and Equal Opportunity Commission into the removal of
Aboriginal and Torres Strait Islander children from their families. By far the
most publicly controversial aspect of the reconciliation process was the charge of
genocide levelled in relation to such removals and the call for an official apology
that would give due recognition to the suffering inflicted upon Aboriginal people
through earlier policies of absorption and assimilation (Goot and Rowse 2007:
141). When the newly elected Rudd government finally delivered the apology in
February 2008, therefore, it was officially hailed as the crowning achievement of
the reconciliation process. What was largely obscured by the public celebration
over this sovereign act of recognition, however, was the underlying cause of this
terrible assault upon Aboriginal identity. While the apology provided a measure of
recognition (both of the suffering endured by Indigenous people and of the value
of their culture), it was marred by an ongoing failure on the part of the Australian
state to properly acknowledge what the history of its relations with Indigenous
people disclosed about its identity.
In principle revelations about the forced removal of Aboriginal children
provided a perfect opportunity to focus critical attention upon the identity-making
186 Paul Muldoon and Andrew Schaap
practices of the Australian state: the history of strategic attempts to incorporate
the Indigenous peoples of the territory into the Australian nation as citizens.
Ironically, however, the apology presumptively addressed Indigenous people as
members of the nation, passing over the fact that it was precisely the attempt to
turn them into ‘fellow Australians’ that was responsible for the tragedy of the
‘Stolen Generations’. The ambiguity of this situation was heightened even further
by Prime Minister Rudd’s attempt to put the apology into the service of the very
nation-building project to which it provided an implicit critique by declaring it
the moment of arrival of a fully unified people. It is this ongoing inability on the
part of the Australia state to properly acknowledge the underlying connection
between its own pursuit of identity and the damage inflicted upon the identity of
others that provides the critical impetus for our examination of the struggle for
the recognition of Aboriginal sovereignty. Turning our attention to the High Court
case of Coe v Commonwealth (1979) and the establishment of the Aboriginal
Embassy in Canberra, we highlight the way claims for Aboriginal sovereignty
press the Australian state to confront the deeper sources of misrecognition in its
own desire for unity and sovereign control. Paradoxically, we suggest, it is when
the Australian state is forced to acknowledge the failure of its own identity and the
project of identity-making, that it can begin to do justice to others.
The recognition of Aboriginal suffering
When newly elected Prime Minister, Kevin Rudd, delivered an apology to
the Stolen Generations in 2008, it was widely viewed as an important act of
recognition by Aboriginal and non-Aboriginal Australians. Rudd’s apology was
significant because it provided official acknowledgment of the injustice of child
removal and its devastating impact on Aboriginal people. But the Prime Minister
also attributed to his own apology a broader historic importance, claiming that
it provided a rare moment in the nation’s history, which had the potential to
transform the identity of the Australian polity and the place of Aboriginal people
within it (Rudd 2008: 172).
Rudd’s claim about the power of the apology to reconstitute the identity of
the polity is supported by recognition theory. Danielle Celermajer (2008: 31),
for instance, observes that a political apology can function as an important
‘mechanism of recognition’. An apology recognizes the hitherto denigrated
identity of the group that has been wronged, reaffirming them as moral and civic
equals while preserving the cultural difference that was previously devalued.
But it also has the potential to transform the cultural identity of the nation that
was complicit in the wrong due to its paradoxical structure. On the one hand, a
political apology entails a shameful identification with the perpetrator of a wrong
(Celermajer 2008: 26). Yet, on the other hand, in aligning oneself with ‘concern for
and recognition of the experience of the wronged other’ an apology ‘bespeaks in
the present another identity’ that transcends the identity of perpetrator (Celermajer
2008: 20). Indeed, following Levinas, Celermajer sees in political apologies the
possibility of an ‘ethical’ or non-sovereign politics, predicated on the recognition
Confounded by recognition 187
of how our freedom is dependent on others. The ‘constitutional shift in identity’
that a political apology makes possible ‘can only occur through [an identity] being
called out of itself, towards the experience of the other, who has previously been
excluded from our field of vision or definition of Australian identity’ (Celermajer
2008: 26). Central to Celermajer’s analysis is the insight elaborated by Charles
Taylor (1995), among others, that our own self-understanding may be transformed
through a struggle for recognition as we become of aware of the limits of our own
cultural horizon by apprehending these from the perspective of the other (see
Schaap 2004, 527f.).
While we agree that Rudd’s apology provided an important official
acknowledgement of the abuse of state power against Aboriginal people, we
want to caution against too quickly endorsing Rudd’s own rhetoric about its
transformative power. As Noel Pearson (2008) observed in The Australian at the
time of the apology: ‘The imperative for the apology was a product of cultural
war. If that was not its original intention, then it immediately became a weapon
in this war.’ Aboriginal people campaigned for over twenty years for an official
apology to the Stolen Generations. However, the public debate that dominated the
formal reconciliation process often seemed internal to the settler society. If the
apology emerged from a struggle for recognition, this was often as not a struggle
among non-Aboriginal people about how they should see themselves as it was
a struggle between Aboriginal and non-Aboriginal Australians over how they
see each other. The voices of many Aboriginal people, who sought recognition
both of the genocide perpetrated by the settler society and of the sovereignty of
Aboriginal and Torres Strait Islander peoples, were often marginalized within the
mainstream debate about whether the Prime Minister ought to apologize or not
(see Gunstone 2007; Short 2008).
In this context, Rudd’s apology might be understood not only as an act of
recognition of the suffering of Aboriginal people but a demand for recognition
of the sovereignty of the Australian state and the unity of the people that
it presupposes. As Patchen Markell (2003: 30) observes, a state’s claim to
sovereignty is less often perceived as a demand for recognition than are the
claims of subaltern groups. More often, the sovereignty of a state is taken for
granted, appearing as a pre-political or extra-political social fact. Indeed, this was
evident in both PM Howard’s refusal to say sorry and PM Rudd’s apology in their
invocation of national unity and shared citizenship between Aboriginal and non-
Aboriginal people. The sovereignty of the Australian state over Aboriginal people
was presupposed rather than acknowledged to be itself dependent on relations of
recognition and therefore the potential object of politicization. As Markell also
observes, despite the fact that the state can never fully realize the sovereignty
it claims, the state commands substantial resources, which are partly due to the
stabilized relations of recognition from which it derives its authority. Consequently,
the political encounter between a subaltern group and the state is asymmetrical,
often allowing the state to ‘set the terms of exchanges of recognition, creating
incentives for people to frame their claims about justice in ways that abet rather
than undermine the project of state sovereignty’ (Markell 2003: 30).
188 Paul Muldoon and Andrew Schaap
What terms of recognition, then, did Rudd’s apology afford to Aboriginal
people? To address this question we must situate the apology within the context
of the reconciliation process that preceded it. The formal reconciliation process
(1991–2001) was effectively inaugurated by Labor Prime Minister Keating in an
extraordinary speech in 1992. Speaking in Redfern Park, the centre of Sydney’s
Aboriginal community, Keating (2000: 61) said that reconciliation ‘begins with
an act of recognition’ that ‘it was we [non-Aboriginal Australians] who did the
dispossessing … We brought the disasters … We took the children from their
mothers. We practised discrimination and exclusion.’ An inquiry into the removal
of Aboriginal children from their families was commissioned in 1994 as part
of this reconciliation process. Relying extensively on the testimonies of people
affected, the report produced by the inquiry described the devastating impact the
practice had on Aboriginal individuals, families and communities and found that
it amounted to genocide under the UN convention (HEROC 1997; see Orford
2006). Aboriginal people broadly embraced the term ‘Stolen Generations’ and
endorsed the view that the removal of children from Aboriginal communities
constituted an act of genocide against them (Behrendt 2001).
By the time the report was tabled in Parliament in 1997, however, there had
been a change of government, with conservative John Howard elected as Prime
Minister. The Howard government questioned the validity of the report’s findings
and dismissed most of its recommendations, including the call for an official
apology. While governments, churches and police forces throughout Australia
issued public apologies in response to the report, PM John Howard (2000: 90)
insisted that ‘Australians of this generation should not be required to accept guilt
and blame for past actions and policies over which they had no control.’ Howard
objected to what he called a ‘black arm band’ view of history and a sentimental
politics of shame embraced by the Left. Against what he derided as ‘symbolic
reconciliation’ based on principles of reparative justice, Howard proposed
‘practical reconciliation’ based on principles of distributive justice. Rather than
addressing particular historical wrongs, practical reconciliation would ensure that
Aboriginal people have an equal opportunity to education, health, housing and
employment, like other Australian citizens.
When Howard first articulated these views at a national Reconciliation
Convention in 1997, a number of Aboriginal and non-Aboriginal people stood up
and turned their backs on him. Incited by PM Howard’s refusal to apologise, from
1998 there was a proliferation of unofficial apologies from ordinary Australians.
Under pressure to respond to the report, Howard eventually tabled a ‘Motion of
Reconciliation’ in Parliament in 1999. In contrast to Keating’s act of recognition
in Redfern Park 1992, Howard’s Motion of Reconciliation appeared to most
Aboriginal people and many non-Aboriginal Australians as a refusal to recognize
the suffering of Aboriginal people. Rather than acknowledging the nature of the
harm suffered by Aboriginal people through the practice of child removal, Howard
offered only a ‘generic’ expression of regret for ‘mistreatment of many indigenous
Australians’ in the past, during which ‘mistakes had been made’ (Howard 1999:
9205, 9207). His passing acknowledgment that ‘injustices occurred’ against
Confounded by recognition 189
Aboriginal people was overshadowed by his concern about the injustice of judging
past generations of non-Aboriginal Australians according to today’s standards or
of expecting current generations of non-Aboriginal Australians to be ashamed of
events in which they did not participate (Howard 1999: 9207).
When the National Apology to the Stolen Generations was finally delivered
by newly-elected Labor Prime Minister Rudd in 2008, it seemed a momentous
occasion. Echoing Keating’s Redfern Park address, it provided unequivocal
acknowledgement of the injustice of child removal and the suffering it caused.
Rather than a generic acknowledgment of mistakes made in the past, Rudd sought
to recognize the specificity of the harms perpetrated by recounting the story of
Nungala Fejo, a Waramungu woman who had been taken from her community in
the 1930s. The apology clearly affirmed the moral equality of Aboriginal people
in asking non-Aboriginal people to ‘imagine for a moment that this happened to
you’ (Rudd 2008: 170). And the apology recognized the justified resentment of
Aboriginal people for the harms perpetrated against them, asking non-Aboriginal
people to ‘Imagine how hard it would be to forgive’ (Rudd 2008: 171). Rather
than expecting that Aboriginal people accept the apology, Rudd asked only that
‘this apology be received in the spirit in which it is offered as part of the healing of
the nation’ (Rudd 2008: 167). By recognizing the suffering of Aboriginal people,
the apology both justified their feelings of anger and resentment and it provided
grounds for relinquishing them (see Muldoon 2009).
What are we to make, then, of the transformative power of the apology as an
act of re-cognition? In his analysis of the apology, Michael Fagenblat (2008: 16)
concurs with Rudd’s self-understanding that the apology entailed an extraordinary
act of recognition in which the nation was imagined anew. Following Celermajer,
he discusses how this involved a twofold process of identification. On the one
hand, it was predicated on a shameful recognition (that transcended the juridical
conception of responsibility) of how the identity of the Australian polity was
constituted ‘by denying and assimilating Aboriginal identity’ (Fagenblat 2008:
20–21). This experience of shame arose through the reflexive self-understanding
in which non-Aboriginal Australians retrospectively came to perceive their
national identity from the moral perspective of Aboriginal people. ‘By way of
shame,’ Fagenblat argues, ‘a relationship of recognition, moral respect and the
preservation of the otherness or particularity of Indigenous Australians was
forged’ (Fagenblat 2008: 22). On the other hand, it entailed an extraordinary
assertion of sovereignty in the ‘mode of contrition’ (Fagenblat 2008: 16). The
exceptional power of the sovereign was revealed in the act of re-imagining the
identity of the people, by invoking a sense of community that transcended the
constitutional order in order to reconfigure that order. Implicit in the apology was
an enactment of sovereignty in terms of ‘kenosis’ – a ‘re-conception of the idea
of sovereignty as a mode of radical humility’ (Fagenblat 2008: 28). As such the
‘[a]pology attested to an abasement of the power of the sovereign to transcend
the law by an extraordinary recognition of the violence of its own sovereignty’
(Fagenblat 2008: 28).
190 Paul Muldoon and Andrew Schaap
But how deep did this recognition of sovereign violence go? Occluded in
Fagenblat’s analysis as, indeed, carefully omitted from the apology, is the naming
of the wrong perpetrated against Aboriginal people as genocide. As Tony Barta
(2008: 210) observes, the description of the practice of child removal as genocide
provided Aboriginal people with a ‘validating truth about their suffering in all the
long years when their trauma had no public recognition’ (see also Behrendt 2001:
146). The Bringing Them Home report supported this perspective, including a
carefully researched section which argued that the removal policies amounted to
genocide under the Genocide Convention ratified by Australia in 1949. This was
the most controversial aspect of the report, which became the primary focus of
the culture wars. Consequently, when Rudd came to power seeking to galvanize a
consensus of the Australian people behind the apology he omitted any reference to
genocide. It is, indeed, unlikely that Rudd’s apology would have been ‘felicitous’
if it had recognized the wrong perpetrated against Aboriginal people as genocide.
For its success depended perhaps more from eliciting public sympathy from
the non-Aboriginal addressors on whose behalf it was offered as it did on being
accepted by its Aboriginal addressees. Yet, in omitting any reference to genocide,
Rudd’s apology did not countenance the antagonism between the settler society
and Aboriginal people on which the colonial state was predicated. In Jacques
Rancière’s (1999: 115–116) terms, we might say that, in this regard, the apology
exemplified a mode of consensus politics that re-presents the political community
as a classless society, denying the relations of non-community inherent to the
particular form of community that it presupposes.1 As such, it failed to properly
recognize the injustice perpetrated against Aboriginal people as a political wrong
– that is, how the suffering they experienced was part of a terrible historical event
that was legitimized or, at least, excused, for the sake of the common good of the
Australian people (Barta 2008: 210).
Rudd framed the apology as an extraordinary act of recognition by appealing
to familiar tropes of reconciliation, resolving that: ‘the injustice of the past must
never, never happen again’; this ‘be a new beginning for Australia’; and this
should not be a moment of ‘mere sentimental reflection’ but ‘one of those rare
moments in which we might just be able to transform the way the nation thinks
about itself’ (Rudd 2008: 167–171). However, the potential of the apology to
transform the terms of recognition between Aboriginal and non-Aboriginal people
was diminished by the presupposition of a certain unity of the polity, the shared
citizenship of Aboriginal people and of what they have in common (as Australians)
with non-Aboriginal people. This is reflected in at least three further limitations of
the apology. First, no tribunal was established to administer reparations to those
affected. Instead Aboriginal people were left to seek compensation through the
courts on a case-by-case basis, like any other citizens. This failure to provide
material reparation reflects a failure to recognize that child removal was a general
policy, enacted upon a specific minority group and legitimised in the name of
the political community. Second, it sidelined the constitutional recognition of
Aboriginal rights. If the government was serious about the promise ‘never again’
it should have made it a priority to enact constitutional amendments to ensure that
Confounded by recognition 191
such discriminatory laws cannot be made in the future rather than leaving this to be
considered at an unspecified future time. Third, while important in itself, the policy
announced of ‘closing the gap’ between Aboriginal and non-Aboriginal people (in
relation to socio-economic indicators of well-being as health, housing, education,
employment) addresses issues of distributive justice within an established body
politic. In the absence of attention to how these distributive injustices are related
to the historical legacy of colonization and ongoing colonial practices, the state
risks reproducing those same practices through a form of rights paternalism (see
Muldoon 2009).
In contrast to Celermajer and Fagenblat’s account of the transformative
power of political apologies, some critics argue that reconciliation in Australia
and other settler societies is implicated in the further assimilation of Aboriginal
people into the national community (e.g. Povinelli 2002; Motha 2007). As such,
reconciliation is implicated in the same identity-making that underpinned the
genocidal practice of child removal. Reconciliation is a new form of ‘settler
nationalism’ (Moran 1998), the ‘latest phase in the colonial project’ (Short 2003),
a ‘more penetrating stage of occupation’ (Gooder and Jacobs 2000: 245). By
acknowledging their shame for the wrongs of the past, the settler society demands
recognition from Aboriginal people of a newfound postcolonial identity, freed
from the weight of the colonial past. In casting conflict between Aboriginal
people and the settler society as already internal to the national community,
reconciliation and the limited recognition it affords is implicated in the further
colonization of Aboriginal people. Indeed, Alex Reilly (forthcoming) argues
that while the apology staged a chastened, pluralistic sovereignty in its mode of
supplication, it actually perpetuated the assumption of a monistic sovereignty that
‘made possible the forced removal of Aboriginal children in the first place.’ Reilly
(forthcoming) agrees with Fagenblat that a genuine apology requires a certain loss
of sovereignty. However, he suggests that Rudd’s apology failed to reflect on the
limits of the state’s own sovereignty since it took for granted that it was within
the (legitimate) power of the sovereign to pass those laws that made the practice
of child removal lawful.
In failing to recognize the exceptional nature of the genocidal practices
through which the state sought to ensure the unity of the Australian polity, Rudd’s
promise that such practices would ‘never again’ be perpetrated appeared hollow.
Particularly troubling in this context, was the fact that Rudd came to power
supporting the Howard government’s controversial military and bureaucratic
intervention in remote communities in the Northern Territory. The intervention
(ongoing at the time of writing), was initiated in mid-2007, ostensibly to rescue
Aboriginal children from sexual abuse and domestic violence (see Altman and
Hinkson 2007). However, it appeared to be politically motivated as wedge
issue prior to a national election and it has also been criticized by the affected
communities and their supporters as a land grab (Behrendt 2009b). Among
other special measures, it involved the extraordinary suspension of the Racial
Discrimination Act, for which Australia has been criticized by the United Nations.
The day prior to Rudd’s apology saw a large protest at the Aboriginal Embassy in
192 Paul Muldoon and Andrew Schaap
Canberra against the intervention (Short forthcoming). And speaking against the
intervention in Sydney in 2009, Larissa Behrendt (who had broadly welcomed
Rudd’s apology the previous year) asked: ‘What are the words that he is going
to use or a government is going to use in twenty years time when they have to
apologize to this generation of Aboriginal people for these policies? How are
they going to make up for the legacy of what they are doing today?’ (Behrendt
2009b). Gary Foley (2008) argues that, in treating Aboriginal people as victims
and ignoring their history of struggles for land rights and sovereignty, the apology
helped to justify the intervention, which is ‘a complete step backwards from
Indigenous self-determination’.
Following this line of critique, the demand by Aboriginal people for recognition
of the suffering inflicted on them through child removal served only (in Markell’s
terms) to ‘abet rather than undermine’ the sovereignty of the (post)colonial state.
However, in a survey of public responses by Aboriginal people to the apology,
Dirk Moses (2011: 146) finds these were ‘overwhelmingly positive.’ Overall,
public comments by Aboriginal people indicated that they found the recognition
of their suffering personally significant and welcomed being recognized as equal
citizens of the Australian nation (e.g. Behrendt 2009a; cf. Behrendt 2009b). On
this basis, Moses (2011, 146) takes issue with critics of the reconciliation process
who presume ‘the persistence of colonial domination, irrespective of legal and
policy changes, by the tautological and essentialist reasoning that colonialism
by definition cannot tolerate Indigenous alterity’. The problem with such radical
critiques of reconciliation, he argues, is that they reduce the possibilities for
Aboriginal agency to a choice between co-optation or resistance to the colonial
state, which fails to account for the complexity of Aboriginal politics and the way
in which Aboriginal people negotiate a ‘sense of simultaneous national belonging
and enduring difference’ (Moses 2011, 155). Tim Rowse (2010) similarly takes
issue with the Damien Short’s (2007) account of the reconciliation process in
Australia, which he says fails to examine the variety of Aboriginal political actors’
engagement with the formal reconciliation process – for instance, as part of the
Council for Aboriginal Reconciliation or the Australian and Torres Strait Islander
Commission throughout the 1990s. Consequently, Aboriginal political presence
registers in Short’s account of the politics of reconciliation only as ‘thwarted
sovereign’, their political history reduced to a ‘narrative of the settler colonial
state’s persistently limited concessions to the Indigenous grievance’ (Rowse
2010: 72, 80). Moses and Rowse thus take issue with the tendency of critical
approaches to reconciliation to reproduce and reinscribe the binary identities of
colonizer-colonized even as they aim to overcome them.
Moses (2011: 155–156) suggests that agonistic pluralism provides a
framework for conceptualizing the political agency of Aboriginal people outside
the resistance/co-option binary, which he thinks prevails in much postcolonial
theory. Indigenous agency, he writes, ‘entails conflict in a space that constitutes
a national political community while recognizing difference’ (Moses 2011: 146).
There is something in this. It is certainly important to avoid fetishizing either the
alterity or the political agency of socially and politically marginalized people. The
Confounded by recognition 193
thematization of social struggle in terms of the ancient concept of the agon was
recuperated by some political theorists who were concerned to find an adequate
vocabulary in which to understand the praxis of new social movements, which
neither emerged from nor could be reduced to the binary of class antagonism.
And it has proved fruitful for understanding the ways in which plural identities
are constituted through action, how freedom is always exercised within relations
of power.
Yet neither should we too easily dismiss the antagonistic moment of struggles
for recognition in the name of recognizing complexity or affirming plurality and
contingency. Since antagonism is often a starting point for politicization, it is
important politically and conceptually in order to understand the conditions of
possibility for social transformation (Deranty and Renault 2009; Muldoon and
Schaap forthcoming). Indeed, reconciliation often becomes ideological precisely
to the extent that it domesticates or elides those antagonistic social relations that
are constituted through material relations of power. Politicization depends on
contesting the political unity in which the terms of recognition are inscribed, the
possibility of making visible a rival image of the common. Rudd’s apology may
not have effaced Indigenous alterity by further assimilating Aboriginal people
into the Australian nation, as a certain meta-political critique of reconciliation
suggests. But neither could it redeem its own promise to fundamentally transform
the Australian polity through the recognition of Aboriginal suffering as those
committed to the ethical turn in political theory hoped. That possibility, we want
to suggest, is better afforded by an ongoing and more antagonistic struggle for
recognition of Aboriginal sovereignty waged by activists against the Australian
state. For it shifts our attention to the identity-making practices of the state itself,
its implication as a party to the struggle for recognition and its own history of
thwarted sovereignty.
The recognition of Aboriginal sovereignty
It is indicative of the capacity of political initiatives to develop in unanticipated ways
that the official reconciliation process should bring genocide forward as a question
for the Australian state to address. No retrospective appreciation of the emergent
radicalism of the reconciliation movement can, however, escape the fact that it
was undertaken in the wake of (yet another) failed bid for Aboriginal sovereignty.
When the Commonwealth Parliament voted unanimously to establish the Council
of Aboriginal Reconciliation in 1991, it was responding in part to the collapse of
a more ambitious proposal for a Treaty that had been a prominent feature of the
national political landscape throughout the 1980s. The high point of the Treaty
proposal came in June 1988 when Galarrwuy Yunupingu and Wenten Rubuntja
presented then Prime Minister Bob Hawke with the Barunga Statement. Among
other things, the Barunga Statement called on the Commonwealth Parliament to
negotiate ‘a Treaty or Compact’ with Indigenous peoples recognising their ‘prior
ownership, continued occupation and sovereignty’ (Attwood and Markus 1999:
317). The Prime Minister responded by declaring that ‘[t]here shall be a treaty
194 Paul Muldoon and Andrew Schaap
negotiated between the Aboriginal people and the Government of Australia. We
would expect and hope and work for the conclusion of such a treaty before the
end of the life of this Parliament’ (cited in Short 2003). In the face of hostile
opposition, however, Hawke betrayed his earlier commitment, abandoning the
Treaty proposal in favour of a ten-year process of reconciliation. If the creation
of the Council for Aboriginal Reconciliation provided a new opening, therefore,
it was also a moment of closure. In the face of a radical new possibility of shared
sovereignty, reconciliation represented a return to the logic of nation building in
which claims for recognition would be procedurally adjudicated in reference to
the identity of the Australian state.
The way in which this forecloses on the possibilities of political transformation
is perhaps best illustrated by returning to those instances where Aboriginal people
have challenged the very terms of recognition by staking a claim to sovereignty.
In the long and complex history of Aboriginal assertions of sovereignty, one of
the primary sites for this claim-making has been the courts of the Crown. It is
here that Indigenous people have challenged the presumption, legally known
as the doctrine of terra nullius, that there was no recognisable legal or political
organisation on the continent prior to the arrival of the British settlers and it is here
that their aspirations for sovereignty have been repeatedly defeated. One of the
most revealing of these challenges was the landmark case of Coe v Commonwealth
(1979) in which the plaintiff, Paul Coe (a Wiradjuri man who played a central
role in the Aboriginal Embassy and the Aboriginal Legal Service) disputed the
accepted, legally entrenched, view that Australia was founded as a ‘settlement.’
In his wide ranging statement of claim Coe made three particularly controversial
assertions: first, that ‘[f]rom time immemorial prior to 1770 the aboriginal nation
had enjoyed exclusive sovereignty over the whole of the continent now known
as Australia’ (121); second, that the British Crown had accordingly acquired the
territory by conquest rather than settlement (125); and third, that agents of the
Crown had ‘unlawfully dispossessed certain of the aboriginal people from their
lands’ (122). Taken together, these claims amounted to the suggestion that the
Australian state was illegitimately founded and had unlawfully dispossessed the
Indigenous people of their lands without fair compensation.
Given that the foundation of Australia as a ‘settlement’ was an established
legal precedent dating back to the nineteenth century, it was not surprising that
the majority judges took a dim view of Coe’s line of reasoning. Though the court
left open the possibility that Aboriginal people, as citizens of the Commonwealth,
might be found to still enjoy certain rights and interests in the land arising from
their original occupation, the assertion that Aboriginal people might once have
exercised sovereignty was summarily dismissed. In his leading judgment, Gibbs
suggested that the statement of claim contained allegations that were ‘quite
absurd’ and had no hesitation in declaring that ‘[t]he contention that there is in
Australia an aboriginal nation exercising sovereignty, even of a limited kind,
is quite impossible in law to maintain’ (129). Two separate rationales for this
conclusion were offered based upon two different interpretations of the nature of
the claim. If, suggested Gibbs, the plaintiff had intended to assert the existence of
Confounded by recognition 195
an Aboriginal nation with sovereignty over the territory of Australia (territorial
sovereignty), the claim had to be denied on the basis that the acquisition of the
Australian continent by the British Crown was an ‘act of state’ that could not be
challenged in a municipal court. If, alternatively, the plaintiff had intended to
assert the existence of an Aboriginal nation with sovereignty over its own people
(domestic sovereignty), the claim had to be denied on the basis that Aboriginal
people had ‘no legislative, executive or judicial organs by which sovereignty
might be exercised’ (129).
Somewhat ironically, then, Gibbs invokes the very concept of domestic
sovereignty used by Marshall CJ in Cherokee Nation v State of Georgia (1831)
as a way of recognising that the Cherokee, while not sovereign in the territorial
sense, still formed a ‘distinct political society’, only to refuse its application to the
Aborigines. What first appears as an anomaly is, however, quickly accounted for
by the pronouncement of the court on the matter of Coe’s identity. As ultimately
becomes evident, the distinction between the two forms of sovereignty – territorial
and domestic – is in fact entirely superfluous in this case, because the Court
rejects the idea that there is an ‘aboriginal nation’ in whom sovereignty of any sort
could be vested. Towards the end of his judgment Gibbs finally raises the question
‘whether the appellant has any standing to sue for the relief which he seeks.’
‘That involves,’ he goes on to add, ‘whether there is a body of persons properly
described as the aboriginal community and nation of Australia.’ Gibbs, tellingly,
refuses to endorse such a proposition. If, he suggests, acknowledging his reliance
upon ‘European standards,’, the term nation is taken to mean ‘a people organised
as a separate state or exercising any degree of sovereignty’, its use in reference to
the kinds of communal organisation evident among the Aborigines is a misnomer.
From the perspective of the High Court, in short, the fundamental problem with
Coe’s claim for sovereignty, whether taken in its territorial or domestic form, is
that it is not properly constituted ‘as to parties’. Sovereignty, even of a limited
kind, emerges as an ‘impossible’ legal proposition for the simple reason that
‘there is no aboriginal nation’ (131).
It is tempting, in light of this explicit refusal of recognition, to treat Coe v
Commonwealth (1979) as a failure. Like other cases in which the question of
Aboriginal sovereignty has been raised, however, Coe’s case remains politically
significant to the extent that it pressed the Australian state to acknowledge itself as
a participant in, rather than simply an adjudicator of, the struggle for recognition.
By re-asserting the prior claim of the Aboriginal nation to the territory now known
as Australia, Coe drew attention to a forgotten antagonism, a struggle over the
right to act as the sovereign power in which the Crown was not so much an agonist,
as a combatant. Viewed as a strategic exercise in historical retrieval, in other
words, Coe’s case works to disinter the antagonism between the coloniser and the
colonised buried under the legal fiction of terra nullius and, in that way, to make
the political stakes of the colonial enterprise more visible. If nothing else, the act
of challenging the established precedent of ‘acquisition by settlement’ brought
to light the hidden dependence of the colonial sovereign upon the recognition of
Indigenous people. Indeed Coe’s action can be considered effective to the extent
196 Paul Muldoon and Andrew Schaap
that it made visible the demand for recognition that the Australian state makes
in all its dealings with Indigenous people – a demand that it (and it alone) be
recognised as the legitimate sovereign.
Of course, part of what makes this case politically significant is the way in
which the attempt to force to the state to acknowledge itself as a participant in the
struggle for recognition – a struggle between potential sovereigns – is displaced
in favour of its preferred image as an arbiter of struggles for recognition among
citizens. Though Coe may have succeeded, albeit briefly, in making a displaced
antagonism visible, his ambitious attempt to renew the struggle over the right to
act as the sovereign power was quickly domesticated by the institutional setting
in which he pursued his action. Consequently, Coe’s claim effectively fails before
it begins since the identity he asserts for himself is incompatible with the terms
of recognition available within the institutions of the Australian state. As the
judgment of Gibbs makes clear, the only legal personality Coe is permitted to
assert in the High Court is that of citizen of the Commonwealth of Australia.
No other identity can be granted legal recognition without contradicting the
foundations upon which the constitutional order (including its judicial arm) is
built. Regardless of its historical merits, in other words, Coe’s attempt to bring
an action as a representative of a sovereign Aboriginal nation can be summarily
dismissed on the grounds of procedural absurdity. His bid for recognition cannot
be made intelligible to the court because it contradicts the judgments about
identity that are built into the institutional setting – judgments that do not simply
precede, but in fact ground, the legal judgment proper. Put simply, Coe’s claim is
confounded by the identity that the High Court pre-assigns to him as a claimant.
In its own way, then, Coe v Commonwealth (1979) illuminates Markell’s point
that it is not simply marginalised groups who practice the ‘politics of recognition.’
Though it has become customary to assume that such politics ‘is a matter of how
much or what kind of recognition we – speaking in the voice of universality, for
the ‘larger society’ – ought to extend to them,’ this characterisation conveniently
forgets that ‘it takes at least two to struggle’ (Markell 2003: 6). As Markell
highlights, those who speak in the name of the ‘larger society’ and its institutions
are also practicing a politics of recognition. The only difference is that they are
better placed to ‘set the terms’ under which any exchange of recognition takes
place (Markell 2003: 6). Indeed, the mere fact that the state is not ordinarily
understood to be engaged in the politics of recognition only serves to underline
the institutional advantage it enjoys relative to the marginalised groups whose
claims it is entrusted to adjudicate as an independent authority. The surest
index of its superior position lies in its capacity to make its own demands for
recognition disappear into the background as part of the already given nature of
things. In the present context that capacity translates into a presumption on the
part of the Australian state to exercise exclusive sovereignty over the territory and
peoples of Australia. If there is a political lesson that must be drawn from Coe’s
case, therefore, it is that Indigenous people need to step outside the procedures
of adjudication made available by the state in order to force it to acknowledge
certain truths about itself.
Confounded by recognition 197
Arguably, one of the most historically significant and symbolically evocative
attempts to do precisely this took place on 26 January 1972 when four Aboriginal
activists (Michael Anderson, Bertie Williams, Billie Cragie and Gary Williams)
pitched a beach umbrella on the lawns of Parliament House in the national capital,
Canberra, and named it the ‘Aboriginal Embassy’. The initial impetus for the
protest was a statement issued by Prime Minister McMahon on the previous day
in which demands for Aboriginal land rights were rejected in favour of a much
weaker (conditional and revocable) form of title called ‘general purpose leases’.
As Embassy activist Gary Foley (2001: 15) recalls, McMahon’s rejection of land
rights effectively relegated Aboriginal people to the status of ‘aliens in our own
land’ and so ‘as aliens we would have an embassy of our own’. From these humble
beginnings the Aboriginal Embassy protest swelled into one of the largest and most
significant demonstrations in Australia’s history (see Peters-Little 1992; Robinson
1994; Foley 2001; Lothian 2007). As the movement gathered momentum, tents
were erected in place of the original umbrella, the recently designed Aboriginal
flag was flown, an office tent was established and a letterbox was installed which
began receiving international mail. Although the Tent Ambassadors did not
initially characterise the protest as a claim for sovereignty, the symbolism of the
Embassy clearly implied a right of self-government and this gradually became
the understanding of both the government and the protestors alike (Schaap 2009:
212).
If the act of taking political shelter under an umbrella revealed a refined comic
sensibility, the naming of the protest as the Aboriginal Embassy also spoke to
the tragic failure of the nation-building project in its existing form. Seen simply
as the condition into which those best placed to call the country home had been
delivered by colonisation (Ab-origine meaning literally, from the origin), the
title ‘alien’ might have done little more than invite mournful reflection upon the
themes of belonging and disinheritance. As the presentation of the Embassy as
a political protest underscored, however, alien was also a symbolically enacted
subject position, a conscious act of political self-identification, which served as a
disavowal of the ‘identity’ of the Australian ‘people’. When it is understood in this
way, the Aboriginal Embassy becomes irreducible to a theatre of victimhood. By
electing to describe themselves as aliens, the Ambassadors were not just lamenting
their dispossession, but refusing to grant the state the recognition implicit in its
characterisation of them as citizens. Making symbolic capital out of the oxymoron
‘indigenous aliens’, they conjoined a primordial right to belong with a political
refusal to belong in order to rupture the assumed unity of the people and mark out
a dissensus.
Officials at the time were inclined to interpret this refusal of identification
as a demand for a separate state and this has been a consistent reflex of state
authorities whenever the question of Aboriginal sovereignty is raised (see Schaap
2009: 212–213). The ‘break-up’ of Australia motif is, however, suspiciously
ideological (itself one of the identity-making tools of the state) and frequently
wholly insensitive to the actual demands being made by Indigenous people. No
doubt the protest movement meant many different things to the Ambassadors and
198 Paul Muldoon and Andrew Schaap
their supporters and it is not our intention (or place) to prescribe a single meaning.
Yet, one can justifiably read the symbolism of the Tent Embassy, not as a refusal
of inclusion per se, but as a refusal to be included in the kind of Australia that
disavows its reliance upon the recognition of Indigenous people. For Aboriginal
Ambassador Kevin Gilbert, this was one of the most important points to emerge
from the struggle for Aboriginal rights. As he would later write, the Australian
state ‘cannot acquire a legal, valid title except by entering into a legal, binding
TREATY of international status with Aboriginal People of this our country’
(Gilbert 1995: 52). Understood in these terms, the Tent Embassy protest was not
a secessionist movement, but an invitation to the Australian state to acknowledge
the contingency of its own identity. By refusing their pre-assigned status as
citizens, the Ambassadors were encouraging the Australian state to acknowledge
the failure of its desire for sovereign unity and to begin from a different legal and
political premise (see Muldoon and Schaap forthcoming).
Perhaps the most marked distinction between the Embassy and the various
High Court challenges to the idea of ‘acquisition by settlement’ lies in its
strategic relocation of the source of confusion over identity. As we have already
seen, the difficulty faced by Coe in the High Court was that his identity as a
claimant was pre-determined by the institutional setting. Put bluntly, the upshot
of Gibbs’s judgment in Coe v Commonwealth (1979) was that ‘you’ – meaning
Paul Coe specifically and Indigenous Australians generally – do not understand
who you are. You imagine yourself a member of an Aboriginal nation, but as
a claimant in the High Court you are actually a citizen of the Commonwealth.
In the case of the Tent Embassy, by contrast, the identity of the claimant does
not prefigure the claim, but arises with it. By operating outside the procedural
forms of adjudication available through the institutions of the Australian state, the
Ambassadors were able to create their own terms of recognition. Theirs is not a
plea for sovereignty, but a performative assumption of sovereignty. Viewed from
the new perspective made available by the Tent Embassy, in other words, it is not
Aboriginal people, but the colonists who do not understand who they are. The
message of the Embassy is twofold: not only have you misnamed ‘us’ as citizens
but that you have misnamed yourselves as sovereigns. Critically these two acts of
misrecognition are intimately related: in effect, the Embassy says to the colonist,
you do not recognise us because you do not recognise yourselves.
Conclusion
The point of this analysis is not to privilege the pursuit of sovereignty over
the pursuit of reconciliation as a more ‘real’ or more ‘authentic’ expression of
Aboriginal politics (as if the struggle against injustice could not be waged on
different fronts and in different ways). It is rather to provide a clearer understanding
of the possibilities and limits of each as a mode of political contestation. Contrary
to those who are inclined to dismiss reconciliation as the latest phase in the
colonial project, our analysis acknowledges it as an important mechanism of
recognition. The apology to the Stolen Generations, justifiably regarded as the
Confounded by recognition 199
high point of the reconciliation process in Australia, simultaneously recognised
Indigenous people as civic equals in their difference and undertook to build a new,
more inclusive, political community. At no point, however, did the promise of a
new beginning allow for critical questioning of the project of identity-making.
Despite its self-presentation as an exceptional event, the assertion of sovereign
power in the mode of contrition, the apology did not fulfil its ethical potential
by identifying the desire for national unity as the source of misrecognition. By
attributing the mistreatment of Indigenous people to outdated prejudices, the
sovereign avoided implicating its own pursuit of sovereignty in the tragedy of the
Stolen Generations and deflected critical scrutiny of the role of the apology in the
continuation of that pursuit.
Our analysis follows Markell in assuming that the ‘root of injustice is not
identity, but the effort to make identity’ (Markell 2003: 23). The value we
ascribe to the struggle for Aboriginal sovereignty in this chapter derives from
the fact that it allows the effort the colonial state makes in the name of identity
– establishing it, preserving it, defending it – more clearly visible. Confronted
by claims of Aboriginal sovereignty, the colonial state can no longer present
its own identity as a given, as something which sits outside the contingency of
intersubjective relations. On these occasions it discloses itself (albeit inadvertently
and unwillingly) as an active participant in the struggle for recognition, at once
dependent upon others for the security of its identity and deeply hostile to the
admission of such dependence. The political implications of this are far from
insignificant. To learn that the colonial state does not simply hear demands for
recognition, but also makes them is to begin to appreciate that it has a strategic
interest in misrecognition. Far from being simply the product of outdated belief
systems, the misrecognition of others (and all the harms that result from them) is
one of the forms taken by the identity-making practices of the state. That some
Aboriginal activists chose to resurrect the Aboriginal Embassy in 1992 in protest
against the substitution of the Treaty Proposal for Aboriginal Reconciliation
speaks volumes about the limited forms of recognition such processes afford. By
renewing the claim for sovereignty, these activists helped to expose the interests
at stake in treating Indigenous people simply as mistreated citizens.
Notes
1 Rancière (1999: 115–116) writes, ‘Consensus thinking conveniently represents what
it calls ‘exclusion’ as the simple relationship between an inside and an outside. But
what is at stake under the name of exclusion is not being-outside. It is the mode
of division to which an inside and an outside can be joined. The ‘exclusion’ talked
about today is a most determined form of such a partition. It is the very invisibility
of the partition, the effacing of any marks that might allow the relationship between
community and non-community to be argued about within some political mechanism
of subjectification.’
200 Paul Muldoon and Andrew Schaap
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Court cases
Coe v Commonwealth (1979) 24 ALR 118
Cherokee Nation v State of Georgia (1831) 30 U.S 1
Andrew Schaap