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The Ethical Risks of Ad-Hoc Bilingualism

photorgaph of Air Canda plane in air

A rather strange episode in Canadian language relations occurred at the beginning of November when the CEO of Canada’s flagship airline Air Canada had to apologize for not being able to speak French, despite living in Montreal for 14 years. Quebec politicians and journalists quickly labelled the remarks as “insulting,” prompting a wave of criticism in his direction, including from the Deputy Prime Minister herself, who wrote a letter to the airline telling the CEO that improvement to his language ability “should be incorporated as one of his key performance goals.” The affair has prompted yet another debate about bilingualism in Canada, but this particular instance highlights a growing ethical problem regarding the way that bilingual policies are understood in practice.

The affair began on November 3rd when Michael Rousseau, the CEO of Air Canada, made his first major speech after taking on the role in February to the Montreal Chamber of Commerce. Rousseau spoke limited French during his speech, and when asked afterwards by a journalist how he could live in Montreal for so long without speaking French, he replied, “I’ve been able to live in Montreal without speaking French, and I think that’s a testament to the city of Montreal.” These remarks were labelled as contemptuous of Quebec and its culture, “appalling and disrespectful,” “insensitive,” and indicative of a “lack of respect for francophones” by various officials at the federal level and from the Quebec government. In response, Rousseau has pledged to take French lessons.

This affair has prompted a counter response that this is simply Quebec “fragility” with each charge against Rousseau being more absurd than the last. But, putting aside the culture war for a second, its worth considering what bilingualism is supposed to mean to a contemporary Canadian society. The role of the French language has been a hot issue in Quebec since the government recently introduced new legislation to strengthen the French language in Quebec and crack down on English use in public. Initially, the policy of official bilingualism in Canada began with the Official Languages Act of 1969, passed by Pierre Trudeau’s government. The intention behind it was to ensure French and English would be given equal status and that French or English Canadians would be able to access services from the federal government in their own language. In addition, Canada’s constitution guarantees equal language rights and education rights. But these inclusive policies seem merely meant to guide government services, not encourage all members of Canadian society to be bilingual.

The dispute playing out stems from an ambiguity. One conception of bilingualism would hold that any Canadian should be able to work in their language of choice. Another conception of bilingualism may specifically promote the idea of speaking both French and English, and as a social policy Canada should become more bilingual in this way. These are very different goals and would require very different resources, carrying with them very different ethical concerns.

For starters, science tells us that learning a new language once we reach adulthood is very difficult because our neural connections have stabilized by that point. This means that a number of social factors will likely determine success in picking up a new language. The science of languages suggests that learning a second language really requires one “to be immersed in it,” “to be around native speakers as much as possible.” Yet, the 2016 Census found that 86% of bilingual Canadians live in Quebec, Ontario, and New Brunswick, meaning that if you live in a difficult geographic region, your ability to learn a second language is far more difficult. In addition, civil servants have argued that current bilingual policies are racist because they effectively exclude immigrants and new Canadians who in many cases must learn not one, but two new languages if they wish to work at the federal level.

There are also concerns that the policy of official bilingualism is exclusionary for aboriginals as well. Former MP Roméo Saganash opposed forcing Supreme Court judges to be bilingual, for example, because it would effectively prevent aboriginals from reaching it. Even recently, there was a controversy over the fact that Canada’s newest and first Aboriginal Governor General, Mary Simon, a bilingual person speaking English and Inuktitut and born in Quebec, was unable to speak French. This raised hundreds of complaints from francophones despite Simon noting how as a child she was denied the chance to learn French.

Finally, even once one has attained bilingual status, ethical concerns remain. The federal government’s own website notes how tension and insecurities between second language speakers and native speakers can lead to exclusion. These insecurities have made it difficult to have a bilingual civil service, so why would we expect these factors not to be a problem if bilingualism were promoted more broadly?

This brings us back to the case of Michael Rousseau. Critics argue that since Air Canada, a former crown corporation, is the only national airline legally subject to the Official Languages Act and required to be headquartered in Montreal, it follows that the CEO should speak French. But while this is a reason for Air Canada to offer bilingual services, it is not an argument that everyone in the company should speak multiple langauges. As Sabrina Maddeaux recently noted,

If no one at Air Canada headquarters spoke French, that’d be a problem to discuss, but that’s certainly not the case. In fact, the airline has a multi-million dollar internal official languages program and employees dedicated to any complaints related to the Official Languages Act. Functionally, this is a non-issue. Rather, it’s a PR problem and optics issue the government has no business sticking its nose in.

Instead, most of the arguments against Rousseau seem to dwell on the symbolism involved. Some argue that Rousseau didn’t show enough “humility,” while other argue that Air Canada is “not just any company” because of its status in Canadian culture. They insist that that CEOs should set an example and that “Official languages obligations should be seen as a duty owed to the nation”: “If the CEO is not bilingual, why should a flight attendant?” Of course, the obvious answer is that a flight attendant directly offers the services mandated to be bilingual while the CEO does not.

But even if it can’t be legally required for a CEO to speak French, should we regard the expectation as more of a social requirement? Should everyone in the company be bilingual? What about other national corporations and institution? If the argument is that either for symbolic reasons or because we actively wish to promote a bilingual society, you must be bilingual if you want to operate at the national level, then we cannot ignore the larger moral issues and potential inequities.

Moving from a model of mandating service in both languages to a model of bilingualism that promotes it as a social policy carries important ethical concerns. Determining who should be bilingual and what national roles should be bilingual is not something that should be handled by a mob of journalists and politicians based on ad-hoc reasoning about which roles rise to the level sufficient importance. This isn’t an issue that affects only a single CEO who could easily afford French lessons. It could conceivably apply to any job field within federal jurisdiction. Such moves in official language policy have the potential to exclude many sections of Canadian society. Policies which could potentially ruin whole careers or exacerbate social inequalities should be rigorously debated and voted on. Given the moral challenges of bilingualism, it is morally irresponsible for a government to proceed in such an ad-hoc or arbitrary way.

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Rio Tinto and the Distinction between Saying ‘Sorry’ and Being Sorry

photograph of Rio Tinto train cutting through landscape

“…we haven’t apologised for the event itself, per se, but apologised for the distress the event caused.” – Chris Salisbury, Rio Tinto Iron Ore CEO

In late May, mining giant Rio Tinto shocked Australia, and the world, by blasting an ancient and sacred Aboriginal site to expand an iron ore mine.

The blast destroyed a cave in the Juukan Gorge, located in the Hammersley Ranges in Northern Western Australia, that was one of the oldest of its kind in the Western Pilbara region, and was the only known inland site on the entire Australian continent to show signs of continual occupation through the last ice age (between 23,000 and 19,000 years ago) during which, evidence suggests, most of inland Australia was abandoned as the continent dried out and water sources disappeared. The cave site itself was found to be around 46,000 years old.

The blast received ministerial approval in 2013, consent obtained under Western Australia’s out-dated heritage laws drafted in 1972 to favor mining interests. Following the 2013 approval, archaeological work carried out at the site discovered it to be much older than originally thought, and to be rich with artefacts and sacred objects.

The 1972 Heritage Act does not allow for renegotiation of approvals based on new information; however, the act is due to be replaced by new legislation, and various factors have caused the renewed heritage act to be delayed. The new draft bill currently in preparation includes a process of review based on new information. In its response to the new draft legislation Rio Tinto has submitted a request that consent orders granted under the current system should be carried over.

The blasting of the site was conducted without prior notification to traditional Indigenous owners, or the state government, and has caused deep distress to the Puutu Kunti Kurrama and Pinikura people (PKKP). Among some of the precious and rare items recovered from the site prior to the blast was a 4000-year-old plaited length of human hair from several people which DNA testing revealed to belong to the direct ancestors of the living PKKP people.

“It’s one of the most sacred sites in the Pilbara region … we wanted to have that area protected,” PKKP director Burchell Hayes told Guardian Australia.

Peter Stone, Unesco’s Chair in Cultural Property and Protection said that the destruction at Juukan Gorge was among the worst in recent history, likening it to the destruction of the Bamiyan Buddas in Afghanistan and the ancient Syrian city of Palmyra.

Rio Tinto claims it was not aware of the importance of the site, nor of the traditional owner’s wish for it to be preserved. But the PKKP Aboriginal Corporation rejected Rio’s suggestion that its representatives had failed to make clear their concerns for the site, and their wish for it to be preserved. “The high significance of the site was further relayed to Rio Tinto by PKKP Council as recently as March,” Burchell Hayes said.

Following the blast, Rio Tinto issued an apology to the PKKP people. “We are sorry for the distress we have caused,” Rio Tinto Iron Ore chief executive Chris Salisbury said in a public statement.

Several days after the public apology a leaked recording from a private Rio Tinto staff meeting found its way to The Australian Financial Review which reported that Salisbury told staff ” … we haven’t apologised for the event itself, per se, but apologised for the distress the event caused.” In a subsequent interview, Salisbury did not contradict the report, and repeatedly refused to directly answer when asked if the company was wrong to blow up the site, only repeating that they were sorry for the distress.

So, what is going on here — what can we make of Salisbury’s remark that the company had apologized not for the event itself but the distress it caused?

In taking the line that it did not know about the site’s significance, and attempting to insulate its apology from an admission of responsibility, Rio Tinto is trying to avoid moral blame. But does the separation hold? Can an agent be sorry for causing distress without ipso facto being responsible for causing it? And if so, does Rio’s attempt to excuse its actions from moral blameworthiness succeed?

The attribution of moral blame is not straightforwardly connected to the objective wrongness of an action carried out or caused by an agent. One way to assess the connection in any given case is to consider what conditions would have to be present for an agent to be held morally responsible, that is, to be blameworthy for an action.

It is possible to identify cases in which an agent is blameworthy even if an action is not in itself wrong; or, conversely, in which an agent is not blameworthy even if an action is wrong.

To give a relatively simple example, Jane intends to poison Joe by putting a white substance, which she believes to be arsenic, in his tea. It turns out Jane was mistaken, and the powder was only sugar; nothing happens to Joe so there is no objective moral wrong committed, however Jane’s intention to poison him is blameworthy. Conversely, if Jane accidentally poisons Joe by putting what she believes to be sugar, but what in fact turns out to be arsenic, in his tea, she is not (necessarily) blameworthy though the act of poisoning Joe is itself an objective moral wrong.

Here we can see that the salient elements for establishing blame are intention and knowledge. In the first case, Jane’s intention is morally blameworthy, even if the outcome is neutral. In the second case, though Jane has no intention to harm Joe, further questions arise about how Jane came to make this mistake, and whether she should reasonably have been expected to know that the substance she put in Joe’s tea was in fact arsenic rather than sugar.

In the case of Rio’s destruction of the Juukan Gorge cave we cannot know if it was Rio’s intention to blast the site over the strong objection of the PKKP owners, though some suspect that it was.

For an action to be morally wrong yet the agent not blameworthy, the agent must have an excuse for carrying it out which absolves them of responsibility. As Holly Smith suggests, “Ignorance of the nature of one’s act is the preeminent example of an excuse that forestalls blame.”

The question, then, is epistemic — for an agent to be held responsible, certain epistemic conditions need to be fulfilled. The first condition is that there is an awareness of the action (that the agent knows what she is doing); second the agent has to have been cognizant of the moral significance of the action; third the agent has to have been aware of the consequences of the action.

The first condition is obviously fulfilled, as the action of blasting the site was deliberate. The second condition of cognizance of the moral significance, together with the third condition of cognizance of consequences is, by Rio, under dispute.

In another statement, made subsequent to the leaked tape of his remarks, Salisbury said he had “taken accountability that there clearly was a misunderstanding about the future of the Juukan Gorge.”

It isn’t clear what having ‘taken accountability’ means, but the claim that it was a misunderstanding is an attempt to avoid blameworthiness by claiming that an epistemic condition is not fulfilled.

However, ignorance can itself be morally culpable. If (in the above example) Jane did not read the box when she could have, say, or if she ignored reasonable suspicions that someone had replaced the sugar with arsenic, then her ignorance does not excuse her of blame for poisoning Joe. It must be noted that there is disagreement among philosophers on this point; while some argue that an agent can be blamed for their ignorance, others maintain that, however criticizable it is, ignorance nonetheless exculpates the agent from moral blameworthiness.

On the former view, if Rio is culpable for its ignorance, that ignorance fails to shield the company from moral blame. This, to me, seems correct — and I would argue that even if we take Rio Tinto at its word that it was not aware of the significance of the site and the PKKP people’s wish for it to be preserved, the company has failed in its responsibility to the traditional owners and is indeed blameworthy.

I might add that taking Rio at its word here seems to me exceedingly generous, and I remind the reader that the PKKP people strenuously denied the suggestion that they had not made their wishes known to the company.

So, regarding the dubious distinction between apologizing for the distress caused but not for the action which caused it, Rio Tinto may say it is sorry, but without an accompanying willingness to accept responsibility, its apology is hollow. It appears the company has apologized from an ostensible obligation to do so, but shows little genuine remorse for this act of cultural destruction.

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Black Lives Matter: Australia

Protest in Australia; two signs are visible: one reads "lest we forget the frontier wars, black lives, white lies" and one shows a black and red image of Australia with the word "genocide" written on it

Our public discourse [is] full of blak [sic] bodies but curiously empty of people who put them there. Alison Whittaker

This weekend protestors for Black Lives Matter in Australia took to the streets in contravention of Covid-19 health warnings to join worldwide protests sparked by the murder of George Floyd to highlight police violence against people of color and to once again raise the issue of Aboriginal deaths in custody.

The statistics and the stories of Black deaths in custody is a vexed issue in Australia, and a national disgrace. In the 30 years since a royal commission was conducted, successive governments have failed to implement many of its key recommendations; and in that time 432 Aboriginal Australians have died in police custody. Despite the manifest violence, negligence, and displays of overt racism around these deaths, charges against police are rarely brought, and there has never been a conviction for an Aboriginal death in custody in Australia. 

Indigenous activists and families of victims have been trying, with only incremental and limited success, to elevate the issue in the wider Australian public. Most of the names and stories of these people are not known to most Australians. 

In a piece for The Conversation, Alison Whittacker, law scholar, poet and Australian Indigenous activist, writes,

“Do you know about David Dungay Jr? He was a Dunghutti man, an uncle. He had a talent for poetry that made his family endlessly proud. He was held down by six corrections officers in a prone position until he died and twice injected with sedatives because he ate rice crackers in his cell. Dungay’s last words were also “I can’t breathe”. An officer replied ‘If you can talk, you can breathe.'”

The statistics for Aboriginal incarceration in Australia are mind-blowing. In some areas in the country, Aboriginal people are the most incarcerated people on earth; They make up roughly 3.3% of the overall population but account for 28% of the prison population. Aboriginal women represent 34% of the overall national female prison population.

The 460 deaths in custody since 1990 is a terrible number, and to each belongs a story – a life, and then a death of indignity, of violence, of neglect. As in the US, in Australia it belongs to an historical legacy of rapacious, brutal colonial expansion. 

May 27 to June 3 is Australia’s National Reconciliation Week. These dates mark two significant milestones for Aboriginal people. One is the 1967 referendum, which for the first time recognized Aboriginal Australians as citizens. The other is the High Court native title decision known as Mabo, which overturned the legal doctrine of ‘terra nullius’ – the principle by which the Crown acquired sovereignty of the continent in 1788, on the basis that the lands were lands ‘belonging to no one.’ 

But there is still a long way to go for Australians to come to terms with the history of frontier wars, which morphed into state maintained forms of oppression and violence, and then into official government policy of forced removal of Aboriginal children from their families. This history is not visible enough to, nor unflinchingly acknowledged by, wider Australia. Nor are the tendrils visible which reach through that history into the present, holding Aboriginal people in all sorts of disadvantage. Disadvantage that is reflected in the statistics. As the Uluru Statement from the Heart says:

“Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.” 

What, at this time, now, can be said and done about the work of reconciliation? In 2000, 300,000 people walked across Sydney Harbour Bridge to show their support for reconciliation. This year, then, marks the twentieth anniversary of ‘the bridge walk’. Yet material change has been frustratingly slow, and in some indicators, things are going backwards. 

The 2018 Close the Gap report on Indigenous health and education targets and outcomes found child mortality at twice the rate for Aboriginal children, school attendance rates declining, and a persistent life-expectancy gap of almost a decade between Indigenous and non-Indigenous people. 

Perhaps reconciliation has had its moment. It was maybe only the first word Australians have learned in the lexicon of change and of justice. Recognition of the nation’s shameful history is a starting point on the long road to equality and justice. But perhaps it has become a platitude, a way for white Australians to settle the ledger of their guilt, a way to paper over deep-seated systemic injustice that is thwarting real progress for Aboriginal lives and that continues to create privilege for settler Australians.  

The problem, as many voices have been saying (for a long time but) especially in the weeks since the BLM protests broke out in the US following the murder of George Floyd, is that white and settler oppression of Black and Indigenous people is thoroughly baked in to the system; baked into the system of colonial expansion– which included slavery and dispossession under terra nullius (both mechanisms used to dehumanize people for the purpose of wealth creation) – and it is baked into its neoliberal iterations. 

Perhaps the problem, rather, is that we have been reconciled to these things, to the reality of Indigenous disadvantage and risk of police violence and incarceration, for too long. 

How, then, can we reimagine and re-engage the concept, the work of reconciliation, or do we need to move beyond it to another stage? The national conversation in Australia has been painfully slow to get going. 

National Sorry Day is marked on May 26th, began in 2007 when the Australian Government, following the release of the Bringing Them Home report, formally apologized to Aboriginal people who were forcibly removed as children from their parents in a government assimilation policy. 

Australian philosopher Raimond Gaita writes that the findings of the report “[were] a source of deep shame for many Australians, and for some a source of guilt” ( A Common Humanity, 1999, pg. 87). While, as Gaita observes, many people feel shame and guilt, many also resisted such feelings, and felt that they were being asked to take responsibility for past wrongs they felt no part of. 

The refusal of shame sometimes takes the form of national pride, in which being proud of one’s nation is mutually exclusive with acknowledging its brutal history and recognizing the remnants of that history. 

Those who hold this conception of national pride take the view that history in which racial injustice is afforded a more central place in our story and our journey to self-understanding is overly bleak. It is known by its detractors as the ‘black armband view of history’ and they argue that we should be focusing on trying to fix the current inequalities rather than looking backwards into a troubled past. This obviously ignores the fact that these current inequalities, created by that past, are able to continue because it has never been reckoned with. 

Therefore the corrupted, shallow conception of national pride can never do anything other than let the deep national wounds fester. To be authentic in our attempts to reconcile, we should not contrast our national truth telling with our national interest, and reconciliation cannot be about ‘moving on’ until the appalling statistical gaps between white and black Australia are well and truly closed. 

But the injustice is not just expressed in the material conditions (by these gaps), or even the systemic problems. Simply moving forward means that there is no proper acknowledgement that those who suffered —  and continue to suffer these injustices — are wronged, and that to be wronged, is itself a distinctive and irreducible form of harm. 

Jacqueline Rose, on the 2018 conference on ‘Recognition, Reparation and Reconciliation’ in Stellenbosch, South Africa, wrote: “thinking was not enough. Not that ‘feeling’ will do it either, in a context where expressions of empathy – ‘I feel your pain’ – are so often a pretext for doing nothing.”

Guilt and shame are part of a pained acknowledgement of wrongs we have committed or in which we are in other ways implicated. But they must also be part of what forces us to change the system and ourselves. 

As protests in response to George Floyd’s murder and in support of the Black Lives Matter movement against systemic racialized violence and oppression raged across the US last week, a Sydney police officer was filmed handcuffing and then sweeping the legs out from under a sixteen-year-old Aboriginal boy who had just issued a vulgar verbal threat; the officer slammed the boy’s face into the pavement. 

Shortly afterwards the New South Wales police minister defended the officer, saying he was provoked and threatened. The minister, in public remarks, expressed far more outrage at the verbal abuse from the teenager than at the officer’s brutal response. 

How can reconciliation occur if such blatant power differentials cannot even be recognized, if the historical weight of wrongs done to a people and the humiliation and disadvantage they continue to suffer is totally invisible? Nothing, then, has been reckoned with. 

The worst thing about this story from Sydney is the grim, horrific moral equivalence being drawn between a lippy teenager and an officer of the law, whose duty is to ‘protect and serve’ using brutal and retributive force.  

When a teenager can be face-slammed for giving a mouthful of foul language to a police officer and this act can be defended by his superiors as a response to a threat, we are nowhere. 

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The Question of Genocide in Australian History

black and white photograph of aboriginal dwelling

In 1948, Australia was one of the first countries to sign the United Nations Convention on the Prevention and Punishment of the Crime of Genocide. In 1998, three Indigenous activists attempted to bring a case against the country’s then Prime Minister John Howard and several other prominent politicians. The letter they dispatched to all Members of Parliament and Senators, as well as foreign diplomats and the UN read, in part:

“The Commonwealth of Australia is responsible for past, present and continuing genocide; attempt to commit genocide and complicity in genocide against the original peoples of the land claimed by the commonwealth of Australia to be under its sovereign administration.”

In 1949, the Genocide Convention Bill, written to approve Australia’s ratification of the UN Convention on Genocide received bipartisan support in Parliament. But in the intervening years, despite being an enthusiastic signatory, Australia had not enacted it’s articles into law, and, though there were other findings against the appellants in the case against Howard et al, there was no corresponding law in Australia that dealt with the specific crime of genocide to be prosecuted in the first place. This legal situation has not been sufficiently remedied.

Meanwhile the national conversation about genocide; in Australian colonial history, in modern governmental policies and its remnants in current systems, is fraught.

Genocide is a profoundly confronting, disturbing subject; most people have very strong views about genocide and rightly associate it with events like the Nazi holocaust, Pol Pot’s campaign of slaughter in Cambodia, or the horrors of Rwanda.

While many are deeply disturbed by the suggestion that genocide could be invoked to characterize the Australian colonial history/experience of Australia’s First Nations, and many reject and repudiate the claim, others believe that the strongest moral and criminal terms are indeed warranted to condemn aspects of Australian colonization. And many have argued that there are at least three or four distinct, intended attempts or instances of genocide in historical and modern Australia.

The term ‘genocide’ was adopted after WWII as a way of comprehending in moral terms and prosecuting in legal terms the crimes of the Nazis against the Jewish people across Europe.

In the present UN Convention, genocide is defined as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.

Hannah Arendt, following her coverage of the trial in Jerusalem of Adolf Eichmann, defined genocide as ‘the desire that a certain distinct people disappear from the earth.’ Her definition tries to grapple with the moral terribleness of attempting to expunge an entire people from existence. Thus the concept of genocide is a unique moral category through which to apprehend the particular character of acts driven by the intention to destroy a people.

Genocide need not refer to the kinds of atrocities, or scale on which they occurred, of the Nazi Holocaust; there is much more to the concept than mass murder – the attempt to destroy a human group in whole or in part can take many forms.

When Australia supported the convention there was a notable, and seemingly unquestioned, absence of any second thoughts regarding colonial or modern Australian treatment of Aborigines. Indeed, forcible removal of Aboriginal children intensified in the twentieth century and was carried out until the 1970’s.

During the proceedings surrounding Australia’s adoption of the Genocide Convention Bill (to approve Australia’s ratification of the Convention) one Member of Parliament said, of Australia:

“That we detest all forms of genocide and desire to remove them arises from the fact that we are a moral people. The fact that we have a clean record allows us to take such an attitude regarding genocide.”

This seems, even given the prevailing views of Australian history, to have been an oddly blinkered view since Ralph Lemkin, the lawyer who first coined the term genocide to describe the Holocaust (just a few years before it was adopted by the UN), thought it had many historical precedents and he mentioned in particular the actions of the Tasmanian colonial government of the 1820s and 30s which resulted in the virtual extermination of the Tasmanian Aborigines during that period of colonial expansionism.

During the frontier wars of the early years in all areas of colonial settlement and expansion through the continent of Australia First Nations people resisted and fought back against the British; but as those wars escalated in the 1800’s there were many instances of mass killings of Aborigines by white settlers.

In official literature and settler records (letters, diaries and the like) there are numerous characterizations of the colonial relation with the indigene as one of extermination. Some accounts endorse this and some find it regrettable. Massacres continued into the early twentieth century, after which a policy of forcible removal of children from Aboriginal parents into missions or non-Aboriginal households continued in various forms until into the 1970’s.

As per the UN Convention, genocide means “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such…” The inclusion of “intent” has been a major, and contentious, issue in how genocide is defined, and how it is identified as such.

Intent is problematic, of course, because it can be hard to prove – but also it is problematic in case there is thought to be a disparity between the intention (of the state, or significant actors) to bring about an outcome and the failure to prevent it or cease activities that result in it. Thus genocidal intent can be particularly difficult to isolate in some situations of war, and in the context of colonization.

Thinking about the effects of colonization on Australian Aborigines (and on Indigenous people the world over) raises the question of whether colonization itself is a genocidal project, and how the inclusion of ‘intent’ in the conventional and legal definition can be located in that question; notwithstanding those specific episodes in both colonial and modern Australia that can be pointedly identified as candidates for the crime of genocide.

Scholars and activists, as mentioned above, have long considered the events in Tasmania to be a relatively clear case of genocide. Following a systematic campaign of dispossession and murder, in 1833 the remaining Tasmanian Aborigines were removed by the government to Flinders’ Island. Even as, in historical records, there are ample expressions of regret, gestures of paternalism, and attempts to “provide them every comfort,” this was understood at the time to be the terminus of Tasmanian Aboriginal culture. Flinders’ Island was essentially a place of death in whose confines the population declined so dramatically that demographic recovery was impossible.

On the fraught question of intention it is not altogether clear where its relationship to culpability stands. Does the intention have to be primary? Is it, for instance, to be considered genocide if the government of the day foresaw probable extinction of Aborigines as an effect of their policies yet carried on those policies unchanged? Is it genocide if, without (perhaps) the primary intention to destroy a human group, a government or other dominant social group carried out activities that hastened the extermination of the culture —  such as forcible dispossession of traditional and tribal lands, deprivation of resources depended upon for survival, massacre, incarceration, forcible re-education of children including loss of language and forced removal of children from Aboriginal families? Given this (incomplete) list of atrocities, it is really not a great stretch to identify the behavior of colonists and subsequent Australian governments as carrying out acts of genocide.

Lemkin argued that genocide is not just forced assimilation but a policy that by drastic methods “aimed at the rapid and complete disappearance of the cultural, moral and religious life of a group of human beings.” For Lemkin, genocide is present when a coordinated plan of actions is aimed at the destruction of the essential foundations of the life of an ethnic, cultural or national group. The conclusion that this applies at least to certain specific episodes in Australian colonial and modern history, if not the whole colonial project, seems inescapable.

The final article of the UN Convention on Genocide makes special mention of the practice of removing children. The case brought against the then Prime Minister in 1998 accused the Commonwealth of acts of genocide in the policy of forced removal of Aboriginal children from their Aboriginal families which took place in the decades from 1010 to 1970. The victims of this policy are now referred to as ‘the Stolen Generations.’

This policy was designed to isolate Aboriginal children from their families and their cultures, and to destroy their relation to land and extinguish their traditional languages. The disastrous effects of this policy on the communities, families, culture, and individual lives of Aboriginal people throughout the nation continues to cause deep cultural trauma and affect health and social outcomes for Aboriginal people. It remains a deep wound in the national psyche for the whole country.

That genocide can take different forms does not render mass murder of Jews in gas chambers equivalent, in one sense, with forced removal of children from their parents – these things are clearly not morally equivalent in every way; nevertheless both belong to the moral category of genocide, and both have what Australian philosopher Rai Gaita has called “the inexpungible moral dimensions” of genocide, whatever the forms it takes or actions that entail it.

Even in the absence of a specific law in Australia, which makes prosecution of cases of genocide virtually impossible, understanding the necessity of the concept of genocide as a category to name the particular moral terribleness of attempting to expunge an entire human group and their particular, unique instantiation of humanity, is essential. This is true even though thinking about Australian history through that moral lens is extremely painful. As it is not clear that Australia can heal these wounds.

Healing, in the sense of making it better, may not be possible, but we have to show up to the conversation prepared to hear and tell the truth about our history, with the courage to acknowledge the role of genocide in that history.

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No Country for Indigenous Men?

close-up photograph of Australia on globe

What does it take to be a natural citizen of a country? Does a person only have to be born within the borders; do they need only to have some sort of ancestral connection to it; or is there some other criterion that a person must satisfy? The High Court of Australia is poised to decide the answer to these questions as far as it pertains to Australian citizenship. The relevant cases both involve people who were born outside of the country to an Aboriginal parent, and who relocated to Australia as children. However as neither man ever obtained Australian citizenship, and are in the country on visas, Australian immigration authorities want to subject them to deportation. Both men have been convicted of crimes for which Australian law allows the government to revoke immigration visas. Those defending the two men, Daniel Love and Brendon Thoms, argue that it is absurd to claim that any Aboriginal person could count as an immigrant who needs a visa in the first place.

The defense of the Aboriginal men depends on the idea that they have some sort of automatic—or nearly automatic—citizenship or at least resident status. (For brevity, we’ll just use ‘citizenship’ to refer to both statuses.) Automatic citizenship is often referred to as birthright citizenship. To have birthright citizenship is to count as a citizen of a country simply by being born. But there are two ways to think of when someone has such a birthright. The first is jus soli (literally, “law of the soil”), which confers citizenship on any person born within the territorial borders of a country. This is the idea of birthright citizenship at issue in immigration debates in the United States, and which President Donald Trump infamously said that he could revoke. However given that neither Love nor Thoms were born in Australia, this can’t be the sense of birthright citizenship at issue.

The second conception of birthright citizenship is jus sanguinis (literally, “law of blood”), which confers citizenship on any person born to one or more parents who were themselves citizens. Jus sanguinis is not commonly referred to as birthright citizenship, but it is helpful and appropriate to think of it as such because it is a mechanism of conferring citizenship status to someone automatically at birth. Moreover this is the mechanism by which it is possible to claim that Love and Thoms have birthright citizenship. Both of them have one parent who is an Australian Aboriginal.

However, Australian law no longer has any birthright citizenship mechanisms. Australian law does not contain a simple jus soli provision anymore, as of the 1986 Australian Citizenship Amendment Act. Children automatically receive citizenship when born within Australian territorial borders only if born to at least one parent who themselves had Australian citizenship or resident status at the time of the child’s birth. Neither does Australian law provide for automatic citizenship by a jus sanguinis mechanism. Instead it is allowed for the parents of a child born outside of Australian borders to apply for the child’s citizenship, provided that the parents are themselves Australian citizens at the time of the child’s birth. Neither Love nor Thoms, nor their respective parents, ever applied for citizenship.

In lieu of a mechanism of birthright citizenship, Love’s and Thom’s representatives are appealing to the idea that as Aboriginal people the two men have a significant connection to the Australian land that confers on them some sort of significant legal standing. This defense invokes an alternative to birthright citizenship called jus nexi (literally, “law of linkage”), which confers citizenship on any person who has an immediate stake in the laws and operations of a country. Jus nexi does not function automatically but confers citizenship on the basis on the contingent fact of a person’s being a “stakeholder” in a country. In the case of Love and Thoms it is specifically their Aboriginal heritage that is taken to make them stakeholders. (This makes the issue a bit confusing, but in general jus nexi is not an automatic mechanism: it does not confer citizenship on the basis of being born to certain parents, or in a certain place.)

Immigration is an increasingly complex problem for governments as refugees and those seeking new opportunities move from one country to another. The social tension and financial pressure that attends such migration has drawn anti-migration reactions not only from people, but from the governments themselves. (The permanent furor over immigration in the United States attests to that.) The invention of jus nexi is one way in which theorists have tried to update the conceptions of the mechanics of citizenship in response to increased migration, and to avoid travesties like the one Australia’s government aims to perpetrate.

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The Djap Wurrung Trees, Hermeneutical Injustice, and Australia’s First Nations People

photograph of road construction beginning with trees in distance

As I write this, a tense standoff between authorities and the traditional owners of a sacred Aboriginal women’s site is coming to a head in the state of Victoria, in southeastern Australia. The state government is preparing to bulldoze an area containing more than 260 large eucalyptus trees, some of which are as old as 800 years, that belong to an area sacred to the women of the Djap Wurrung nation: the Indigenous people and traditional owners of this area in western Victoria.

The proposed destruction of the site, to make way for an extension of a stretch of highway that links the two state capitals Melbourne and Adelaide, has led to a protracted battle between traditional owners and authorities, and some of the protesters have been there for over a year. Tent embassy spokeswoman Amanda Mohamet said: “We are the traditional custodians of this part of country, and we have a cultural obligation to be here.” The government insists it has sought and gained permission from traditional owners, but the protesters reject this, arguing that authorities have instead confected a ‘manufactured consent’.

The official reason for this extension is safety; authorities argue that this is necessary after 11 deaths since the beginning of 2013 on the stretch of road due to be upgraded. Protesters have now issued a red alert as fencing and machinery are being moved in. This situation is deeply distressing to the Djap Wurrung people, to the wider Indigenous community and to all Australians who stand in solidarity with them. It must be understood as a continuation and entrenchment of dispossession and colonial violence done to Australia’s First Nations people at the hands of British and European settlers. The history of the colonization, or invasion, of Australia is a history of violence to Aboriginal people and theft of the land to which their physical, ancestral, and spiritual lives are inseparably connected.

When the British colonizers arrived in Australia, a little over two hundred years ago, they encountered a land that had been peopled by its original occupants for over 60,000 years. Just pause for a moment on that number – on that length, and depth of time. The settlers encountered an ancient and complex culture formed from hundreds of different Nations, speaking hundreds of different languages; all with rich and deep religious, totemic, cultural, and ancestral connections to the land – to ‘country’. But, in another way, the settlers did not ‘encounter’ that culture at all. They saw Aboriginal people but they did not ‘see’ them. As Nayuka Gorrie writes of the Djap Wurrung efforts to save their sacred ground:

“The inability to see these sites as worthy of being protected or that they are significant is fundamentally racist. It is white selectivity that deems sacred trees unworthy of protection. This white selectivity spans across all elements of our life.”

This situation highlights an especially deep and entrenched kind of epistemic, hermeneutical injustice. The term ‘epistemic’ refers to knowledge, and the term ‘hermeneutic’ refers to interpretation. Miranda Fricker coined the term ‘epistemic injustice‘ and her original work recognized hermeneutical injustice as one type of epistemic injustice. Epistemic injustice occurs when a person or group of people are wronged specifically in their capacity as knower(s); when they are disadvantaged by being prevented from sharing or accessing knowledge.

Epistemic injustice affects those who are sidelined by others in positions of greater social power – when members of non-dominant groups are prevented from participating in meaning making of ‘shared concepts’. Those experiencing epistemic injustice may not be believed, may not be understood, or their knowledge and experience may be discounted or ignored.

Hermeneutical injustice occurs when an individual or group encounters a blind spot in how their experiences or concepts are understood. This can happen in situations where the individual or group is relegated to a position of relative social powerlessness, from which their experience is not recognized by, or reflected in, the collective conceptual vocabulary of the dominant social group.

Hermeneutical injustice is preceded by hermeneutical marginalization. Non-dominant groups are hermeneutically marginalized when they aren’t able to participate fully in the process of meaning making, so that the dominant group’s shared concepts fail to recognize the experiences of those marginalized groups. This happens when those in power are allowed to define the experience or control the conceptual apparatus. Conceptual gaps then open up in the social fabric, where a marginalized group can’t communicate to the dominant group, and where their experience, ways of understanding it and attempts to communicate it, are not acknowledged. The process whereby a group is hermeneutically marginalized is a spiral in which their communication is frustrated as a result of their marginalization, and then the frustrated communication further entrenches their marginalization.

Many levels of epistemic injustice are, in a multitude of ways, central to the experience of Australia’s First Nations people and hermeneutical marginalization is one of the central features of the colonial mindset; hermeneutical injustice is present at the very roots of colonial attitudes to Aboriginal people’s experiences – historically and contemporarily.

Aboriginal people’s deep cultural knowledge of the land did not register in the European consciousness. That is no mere accident of cultural difference. It has to be understood, historically, as embedded in the intentions with which the European settlers arrived on the continent. They came to take ownership of the land, to acquire and use it for the purpose of their own prosperity, and that intention mediated all their interactions with Aboriginal people.

When the first settlers arrived they saw a vast country ripe for the taking. Their determination to own and exploit the land blinded them to the truth about the Aboriginal people’s relation to the land. The settlers refused to acknowledge, refused even to see, the deep and ancient knowledge structures of the Indigenous cultures. They had no register in which Aboriginal knowledge of the land could be understood.

Consider for instance the type of knowledge known as the Songline, or dreaming track. Songlines are complex maps that record creation stories and histories that navigate vast terrain and map story onto country. They are recorded in songs, stories, ceremonial dance, and artworks. They take in landscape, its features, things people need to know (like where to find water or other local plant or hunting knowledge), as well as history and ancestry, things related to ceremony and other sacred knowledge. This knowledge is not ‘about’ the landscape, it is embedded in it, it is inseparable from it – and so destruction of country is destruction of knowledge. It is a kind of epistemic violence, which is related to, leads to, and sustains actual physical violence.

Fricker discussed the ‘virtue of hermeneutical justice’ whereby sensitivity to the gap in hermeneutical resources might be cultivated to prevent hermeneutical injustices. In Australia that means listening to Aboriginal people’s account of their experience, and learning from them what they know about the vast landscape of the continent.

Indigenous author Bruce Pascoe, in his recent book Dark Emu, has seriously challenged the view, upon which Australian history is based, that the first Australians lived a simple hunter-gatherer lifestyle. His research uses records from the settlers such as letters and diaries reveals a much more complicated Aboriginal economy based on land care, manipulation of landscape by building of dams and wells, planting, irrigating, harvesting, and food storage.

Many of the documents from which this picture of Aboriginal knowledge emerges also reveal the hermeneutical marginalization that Australian history rests on, because the settler accounts are epistemically blind to Aboriginal knowledge about the land, and therefore to the nature and depth of their cultural relationship to it. Many of these documents reveal details of Aboriginal land use while at the same time, perversely, dismissing or underplaying it.

So we could see, in the fight to save the Djap Wurrung trees in western Victoria, an opportunity for redress, and to promote epistemic justice, rather than a clash of interests between traditional owners and road safety concerns.

As Djap Wurrung man Nayuka Gorrie points out,

“The official line given by the Major Roads Project Authority is safety. This framing can be understood as a way to undermine land defenders and position us as against the interests of the rest of the population.”

To treat the issue as though the claims of safety were in some way ‘equivalent’ to, and therefore can be balanced against, sacred relation to country is a form of epistemic injustice through equivocation. The ‘road safety’ defense is a form of hermeneutical marginalization in the way it uses well-healed concepts (like “safety”) that are unmistakably tied to the goals and interests of the dominant group. These concepts effectively erase the very different language of Aboriginal people in their attempts to convey their physical, cultural, and spiritual connection to country. As Sissy Austin explains:

“This is a landscape that forms the basis of Djab Wurrung identity – from the roots of the trees that are more than 800 years old, the rolling hills, the kangaroos, eagles and black cockatoos, to the stories of the stars, the moon and the sun. You cannot have one element of country without the other.”

Before European settlement Aboriginal Australians were astronomers, they had complex maps of the stars represented in constellations which they recorded in rock paintings. They had highly developed systems of agriculture, oral literary traditions, and fine art – yet the settlers’ concepts of ‘civilization’ did not recognize them as civilized. That hermeneutical marginalization and the injustice it perpetuates continues as authorities ignore the pleas of the Djap Wurrung for the preservation of their sacred country.

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Cultural Heritage and the Murujuga Petroglyphs

photograph of petroglyphs etched in a number of different stone faces

The Australian continent has been continually inhabited for at least 60,000 years. The Aboriginal or First Nations people of Australia are the longest surviving continuous culture(s) in the world, though their traditional lifestyles, languages and connections to country have been severely degraded by European settlement at the end of the Eighteenth Century. The Burrup peninsula, in the north-western corner of Australia, is home to a vast gallery of petroglyphs, or rock carvings, which tell a story of human habitation that stretches back tens of thousands of years, well before the last ice age to the time when Neanderthals still inhabited Europe.

Known as Murujuga in the local Aboriginal language, the site contains more than one million petroglyphs across 36,857ha of the peninsula and surrounding Dampier Archipelago. The petroglyphs of the Murujuga peninsula “have been considered to constitute the largest gallery of such rock art in the world.” The most recent petroglyphs were carved in the 1800s, before the Yaburara People (the artists and traditional inhabitants of the area) were murdered or driven off the land in a period of sustained colonial killings in 1868 known as the Flying Foam massacre.

Among its treasures Murujuga contains pieces of rock art that are some of the oldest known examples of art by prehistoric humans. The oldest of the petroglyphs at this site date back some 40,000 years. Among many things the Murujuga petroglyphs depict, there are pictures of some species of megafauna, such as the giant flat-tailed kangaroo, which became extinct around 30,000 years ago. The Murujuga site is also home to the first known image of a human face in history, carved about 35,000 years ago. The value of these ancient carvings, not only for Australia’s First Nations people, but also for all of humanity, is inestimable.

However the northwest of Australia is also home to massive iron ore, oil, coal, mineral and gas reserves, as well as other heavy industry. Industrial scale mining in areas including the Burrup Peninsula has, from the early twentieth century, contributed to Australia becoming one of the per capita richest developed countries in the world. Thus it comes as no surprise that the preservation of the Murujuga rock art has been subordinated to economic and corporate interests. In the 1960’s development of deep-water ports to transport iron ore was carried out without any survey work, as museum recommendations on preservation following survey work on nearby rock art had hindered other proposed developments. “A great deal of rock art was destroyed on the peninsula in the 1960’s” writes Robert Bednarik, an archaeologist who, since the early 2000’s has been arguing for greater steps to be taken for protection so that the petroglyphs may be saved from further destruction.

These developments, along with those of and around the original town of Dampier, where coastline was bulldozed and filled in, including a major site on which the power-station was erected, has destroyed an estimated 20 to 25 percent of the population of petroglyphs. The Murujuga rock art is now under threat from chemicals associated with mining, and nearby fertilizer plants. The site currently sits adjacent to the largest gas refinery in the Southern Hemisphere. 

In 2018 the Western Australian government formally committed to pursuing World Heritage status for the Burrup peninsula and together with traditional Aboriginal native title land owners signed off on an application to have the site listed under the UNESCO world heritage programme. 

Central to any proposal for a site to gain recognition as world heritage is a ‘statement of outstanding universal value.’ The notion of ‘outstanding universal value’ means that sites are seen as part of the ‘heritage of mankind as a whole,’ and as such ought to be protected and transmitted to future generations. Sites of ‘outstanding universal value’ can gain World Heritage status by meeting one of ten possible criteria. At least the following three clearly apply to Murujuga: the site represents a masterpiece of human creative genius and cultural significance; it bears a unique or exceptional testimony to a cultural tradition or to a civilization which is living or which has disappeared; it is directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance. A site of ‘outstanding universal value’ therefore marks a remarkable accomplishment of humanity, and stands as evidence of our cultural, intellectual and aesthetic history on the planet. 

The importance of gaining world heritage status for the Murujuga rock art is that world heritage status is a strong catalyst for better protection and management. It is also a strong statement of what we value and why. Present in the very idea of world heritage is a sense of reverence for the achievements of human life, civilization and culture through time, and the idea that relics of such achievements from the distant past teach us all something about what the human journey has been. The importance of protecting the Murujuga rock art lies in its value to humanity – as a record not just of human history as something in the past, but as a testament to human creativity.

The Murujuga gallery is a place of enormous anthropological and archaeological importance. But unlike other sites of prehistoric art, such as the ancient cave paintings in Spain and France, it is part of a living cultural tradition. For Australian Aboriginal people, places of special sacred significance, and objects and artifacts produced by ancestors, form part of a living cultural tradition, in which ancestors are ‘present’ – captured in the notion of Dreamtime with its complex understanding of place and time in which myth, narrative, past and present mingle. 

But the possibility of a successful application leading to official world heritage listing is dependent on there being a good chance the site can be preserved. This aspect of the application already looks shaky, as the West Australian government is apparently not prepared to make sacrifices to industry, current or future, that would put the interests of the petroglyphs above those of industry. 

The WA government is currently pursuing further industrial development alongside the world heritage listing. A briefing note to premier Mark McGowan leaked to the media last year warned that the timing of the latter was “critical” to ensuring industrial development continued. Regulators in Western Australia are considering proposals for two new chemical plants on the Burrup peninsula that would increase air pollution. A Senate report has warned emissions from heavy industry on the peninsula could damage the carvings, prompting rock art experts to call for a halt to new industry approvals until an accurate picture of the damage being done to the petroglyphs can be assessed. Any plans to increase industrial development in the region could damage the rock art and undermine efforts to secure world heritage listing. UNESCO has already indicated that the current level of industry on there may impinge on the possibility of World Heritage listing.

Consider the analogy between the destruction of  Murujuga and the worldwide outrage at the destruction of the Bamiyan Buddhas by the Taliban in 2001 along with the heartbreaking destruction of Palmyra by Isis in 2016. These actions caused a widespread global sense of shock both at the loss of irreplaceable historical and cultural treasures as well as at the barbarity with which they were destroyed. Is it any less barbaric to fail to prevent the slow destruction of the Murujuga petroglyphs, through insidious neglect and capitulation to industry? 

The ethical issues are clear here, and clearly connected to the line that can be drawn from the colonial attitudes to and barbaric treatment of Australia’s First Nations people, (exemplified in the governments’ historic disregard for sites of important cultural significance for Aboriginal people) to the corporate colonial interests of resource giants being allowed to continue the destruction of cultural heritage. 

Those advocating for the preservation of the Murujuga petroglyphs face a difficult fight to protect these beautiful, delicate and ancient artworks, which reach as far back as human history, from the industrial juggernauts of fossil fuel mining and heavy industry destroying our collective human future.