Jennifer Balint et al. Keeping Hold of Justice: Encounters Between Law and Colonialism. Ann Arbor, MI: University of Michigan Press, 2020, 218 pp., USD 74.95 (hardback).
Keeping Hold of Justice: Encounters Between Law and Colonialism makes a key contribution to the literature on colonial structural injustices and the need to centre First Nations voices in historical truth-telling. The authors—historians Jennifer Balint, Julie Evans and Nesam McMillan and law professor and Wiradjuri man Mark McMillian—identify colonial harms against First Nations people and the potential for structural justice to transform the relationship. The book augments their previous research on injustice in colonial truth-telling (e.g. Balint 2014; Balint et al. 2014; Balint et al. 2018) and the role of nation-building in promoting justice outcomes and health outcomes (e.g. McMillan et al. 2016) by spotlighting the initiatives of Wurundjeri people’s truth-telling in the face of colonial denial.
The book builds on the concept of “structural violence” coined by Johan Galtung (1969) by applying the idea to an occupier colonial 1 context (see also Tauri and Porou 2014; Coulthard 2014; Gerlach and Browne 2016; Grewcock 2018; Jenss 2018; Lu 2018; Eisenberg 2018; Mitchell 2020; Wolfe 1994: 101–102). It provides an important study into how the post-WWII “decolonization” era has reproduced and entrenched colonial structures and forms of truth-telling on the terms of the colonizer (see Fanon 1963; Anthony 2018). Keeping Hold of Justice is a critical intervention at a time when Victoria—the key location of the book’s research—along with the rest of Australia and other occupier colonies are coming to terms with the nature of truth-telling and treaty-making (e.g. see Williamson 2021a, 2021b).
By narrating the historical experiences of First Nations peoples in truth-telling and legal pluralist spaces, the authors reveal the role of law in resetting relationships. The authors treat legality as a dynamic between colonial law and First Nations laws. They resist Western-centric singular and ubiquitous notions of law that are derived from institutions. They point to how the decisions of such institutions—including government, courts and royal commissions—inscribe the colonial law’s authority (55). Structural justice, by contrast, is not found in institutional decisions but rather in decentring power from these institutions and requiring the state to own up to its responsibilities to First Nations peoples through strategies enacted by First Nations peoples.
The geographical scope of Keeping Hold of Justice is wide-reaching. It crosses several First Nations in south-eastern Australia, including the Wurundjeri, Yorta Yorta and Wiradjuri First Nations, and traverses numerous examples of transitional justice internationally. This book raises challenges for all countries experiencing structural injustice and state crimes, but especially occupier colonies. The authors’ call for structural justice links the past, present and future and situates harms in Western colonial law while promoting legal plurality for “a more just future.” (136)
Practices of Legal Pluralism as a Response to State Crime
Keeping Hold of Justice provides a compelling case for generating just relations between First Nations and non-First Nations peoples and laws. They ground their argument in historical and contemporary expressions of First Nations laws, storytelling and struggles for justice. A cornerstone of the book is the 1881 Coranderrk Inquiry—which investigated the Board’s management of Wurundjeri people at Coranderrk Aboriginal reserve—and the Minutes of Evidence project which is based on the inquiry. The authors regard them as living examples of structural justice (see Minutes of Evidence 2013 and below).
The possibilities for legal pluralism are also embodied in the authors’ depiction of the actions of Yorta Yorta lawholder and campaigner William Cooper. Cooper is described as representing his sovereign Yorta Yorta system and at the same time using his knowledge of the colonial-legal-political system to make change within the system by petitioning governments and the British monarch for a Day of Mourning. In this way, he executed his responsibilities as a sovereign Yorta Yorta lawholder while pursuing colonial-legal avenues. This led him to establish the Australian Aborigines League, which staged a Day of Mourning in 1938—on the 150-year anniversary of colonization. The authors state that the political and legal demands of Cooper are part of the “signs that [First Nations] sovereignty was not (and never will be) ceded.” (53)
Structural Justice through Individual Relationships
For the authors, structural justice occurs through relations between First Nations and occupier lawholders (Chapter 3). First Nations peoples’ encounters with colonial-legal authorities were not calls to the occupier-legal system, but to individual “office holders” who were authorized to act as lawbearers (56). At times the petitioning of First Nations people to “individual settlers” reaped positive outcomes because they were able to recognize their lawful responsibilities (58–59). The authors also draw on several examples of land claims to unpack relations between First Nations and occupier landholders. One notable example is that of Eddie Mabo who altered 204 years “of incorrectly applied settler law.” This meant,
each person who for 204 years had developed ideologies, practices and structures to subvert the lawful relationship would now have to look to their own behaviours and attitudes toward Indigenous peoples and Indigenous laws. (59)
The authors’ emphasis on shifting colonial-legal structures through resetting relationships among and between individuals (60) is perhaps surprising for a book based on structural injustice, but it is nonetheless well-documented and grounded in First Nations experiences. There is also a focus on the accountability of the state and its law, although very little on holding to account law enforcers (courts, police, prisons) and corporations that commit colonial crimes. As a scholar and Euahlayi man, Bhiamie Williamson (2021a) makes clear, truth-telling requires addressing ongoing grabs of First Nations land. In recent years corporate crimes have encompassed mining companies that have desecrated sacred sites, such as at Juukan Gorge in Western Australia, and polluted sacred wetlands, such as on Wangan and Jagalingou Country in Queensland, without as much as a criminal fine. In the United States of America, the Sioux Tribal Nations and their Country suffered as a result of the private Dakota Access Pipeline in the United States. The significance of Keeping Hold of Justice is that it provides a way to recast relations by confronting colonial wrongs in all their manifestations.
Transitional Justice
Keeping Hold of Justice argues for a radical transitional justice, which is led by First Nations people and enables systemic change. The authors point to international criminal justice mechanisms for responding to “state crimes” as an “ideal legal space in which colonial injustice—as large-scale, state perpetrated, and devastating harm, ironically justified in the name of humanity—might be acknowledged and redressed in the present.” (63) According to the authors, international criminal justice, “offers a language and architecture through which the enduring structural violence of colonialism could be more comprehensively recognized and addressed.” (63) However, like many institutional responses, it often falls short of its objectives when encountering colonial injustices. In Chapter 4 the authors analyze the International Criminal Tribunal for Rwanda (ICTR) that demonstrates how Rwandan survivors of state crimes were excluded from participation (68). The tribunal relegated colonial crimes to the past, which the authors criticize for precluding redress and “ethical and affective engagement from contemporary communities.” (69–70)
It is in Chapter 5 that the authors engage with the potential role of transitional justice in confronting colonial structural injustices. They assert that it provides a multi-faceted approach that recalibrates relations by responding “to mass harm systemically and pluralistically.” (89) It requires that the state be willing to accept change and responsibility. The authors reflect on the limits of transitional justice in practice—such as in Rwanda, South Africa, East Timor and Sierra Leone—to show how it strengthens rather than challenges the state. They also articulate the narrow terms of reference of the Canadian Truth and Reconciliation Commission (2007–2015) and the Australian Inquiry into the Stolen Generations (1997) only dealt with the past removal of Indigenous children from their families, and failed to inquire into the holistic harms of colonization or provide necessary reparations. An anti-colonial imagining of transitional justice, the authors suggest, must push back on “enduring structural arrangements” by involving widescale change (95).
The authors propose that “settler colonial theory” should be deployed to enrich transitional justice models. The potency of this theory, according to the authors, is that it exposes the subjectivity of Western sovereignty and its lack of a legal basis. It calls into question “the ongoing denial of Indigenous sovereignty” and opens “the potential to place Indigenous peoples outside the rule of law.” (100) This raises issues of jurisdiction, which departs from the earlier chapters that are focused on law as a “meeting points” between Western law and Indigenous law.
The Importance of the Legal Record and New Methodologies
The final chapters return to the “meeting points” in the Coranderrk Inquiry and the Minutes of Evidence project (“the project”) to reimagine law. It creates “public spaces within which to explore, share and interrogate Victoria’s colonial past and present in new and engaging ways”—through research, education and performance (137). The performative aspect of the project, for which the authors were involved, is the theatre Coranderrk: We Will Show the Country, a verbatim play based on the original “minutes of evidence” of the 1881 Coranderrk Inquiry along with other documentary evidence from the time (newspaper articles, petitions, letters). The play explores issues of structural injustice in its historical context and embodies a form of truth-telling. When it was performed in 2016, it brought together First Nations and non-First Nations performers and audiences to share in critical discussions on structural justice.
This involvement of the authors in the theatre project aligns, in my mind, with the ground-breaking methodologies of critical race theorists, such as African American legal scholar Kimberlé Crenshaw and law professor and Eualeyai/Kamillaroi woman Larissa Behrendt. They powerfully use storytelling methodologies in theatre and film respectively to expose ongoing injustices against African American and First Nations people in the legal system and highlight the resistance of communities. 2 Their contributions, like the Minutes of Evidence project, evince how research and academics can, and indeed have a responsibility to, play a role in social movements and that the moving picture can often be more potent than the written word in social change.
Timeliness of the Book
This is a timely book given local and international developments in relation to truth-telling and reparations for colonial injustices. In numerous states and territories in Australia and provinces in Canada, modern treaty-making is afoot, and in Victoria specifically the Yoorrook Truth Telling Commission has been established (see First Peoples’ Assembly of Victoria 2020). At an international level, the United Nations General Assembly in 2021 handed down its report Transitional Justice Measures and Addressing the Legacy of Gross Violations of Human Rights and International Humanitarian Law Committed in Colonial Contexts (Salvioli 2021). This report acknowledges, “transitional justice offers a privileged vantage point from which to address the deeper causes of colonial violence.” (2021: 5) It calls for a truth commission that considers all historical and ongoing violations of First Nations rights stemming from colonialism (2021: 11). It proposes that victims and communities be placed at the centre of transitional justice processes (2021: 20) and their scope include reparations, restoration of land, guarantees of non-recurrence and addressing “power structures.” (2021: 11, 13–14, 18)
Keeping Hold of Justice deepens understandings of transitional justice for First Nations peoples in colonies. It illuminates the structural power logic that underpins various colonial state crimes, including massacres, dispossession of land, the destruction of cultural heritage, cultural genocide, enslavement, segregation and assimilation, stolen children, hyper incarceration and deaths in custody. However, it also provides a vision for change and a reason for optimism based on the strengths and struggles of First Nations peoples and the just engagements between First Nations and non-First Nations lawholders. Ultimately, this book skilfully maps the lasting relationality between First Nations and non-First Nations laws that “hold the possibility of just relations.” (61)