We must not make a scarecrow
of the law, setting it up to fear the birds of prey, and let it keep one shape
till custom make it their perch and not their terror.
Measure for Measure, Act two, Scene
one.
The current edition of The New York Review of Books
includes a short and incisive book review titled A Legacy of Plunder by Francisco
Cantú (link
here):
The institutional lineage of
indigenous dispossession is at the centre of Michael John Witgen’s ‘Seeing Red’,
which was a finalist for last year’s Pulitzer Prize in history. It is neither a
popular history nor a polemic, offering instead a deeply researched look at the
ideological and legal foundations of the systems that have despoiled Native
nations. Witgen’s subtitle, ‘Indigenous Land, American Expansion, and the
Political Economy of Plunder in North America,’ reveals the scope of his
history, which examines the ways, both sweeping and quotidian, that early
American settlers, traders, diplomats, and politicians stole and expropriated
land.
What struck me however were the very first two sentences of
Cantú’s review article:
Growing up in the southwestern
United States, I often heard stories from my stepfather about people who
enriched themselves by stealing from Natives. These were not tales from the
past, but ongoing stories taking place on the reservation lands where he
was employed and later lived (emphasis added).
It is not a new story, and while situated within a different
context than that which applies in Australia, the resonances if not the
parallels are clear.
While I am generally inclined to frame policy opportunities
from the standpoint of the extant institutional frameworks, Cantú reminds us
that the past is of continuing and current relevance and the shortcomings of
past policies, and indeed, changes in our broader political system can facilitate
ongoing dispossession into the present, albeit utilising new forms of political
economy.
I have long held the view that institutional frameworks are
crucial determinants in the allocation of societal benefits, resources and financial
flows, including to First Nations people though mechanisms such as legislation,
and embedded social processes such as our systems of justice, welfare, and taxation.
For First Nations citizens, these institutions include land rights legislation,
the Native Title Act, national agreements such as the National Agreement on Closing
the Gap, and numerous organisations and structures such as the Indigenous Land
and Sea Corporation and Indigenous Business Australia. Yet none of these mechanisms
and frameworks operate perfectly, and moreover, over time their efficacy and
effectiveness can degrade and diminish. Yet progressive mainstream and First Nations
advocates too often assume them to be in effect permanent and uncontested
givens.
Yet the reality is that powerful mainstream interests are
continuously looking to extract leverage and benefits from across the institutional
domain. Existing institutional frameworks which allocate benefits to First Nations
interests are not immune from this attention, and over the past five decades most
have experienced gradual and incremental degradation or the absence of reform
momentum. One need only look at the failure of governments to replicate the
structure of the NT Land Rights Act in subsequent state legislation, or the
failure to address the quotidian shortcomings that have emerged over time with
the Native Title Act. The 2015 ALRC review of the Native Title Act has been effectively
ignored; yet now we have another review to report in December 2025 (link
here and link
here). In relation to the NT Land Rights Act, over the past decade or so, the
quality of regulatory oversight appears to have fallen off a cliff (link
here).
My point is that the gradual and incremental deterioration
of what were once reforming and pathbreaking institutional frameworks can, in
worst case scenarios, facilitate the continuation (often in new guises and incremental
steps) of economic and social dispossession.
Effective and visionary policy development is not just
about creating new institutional frameworks. It is also about ensuring existing
institutional frameworks continue to deliver social and economic benefits and
remain fit for purpose.
13 June 2024
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