Stolen Generation

THIS ARTICLE WAS WRITTEN BY ANUPAM TEWATIA, A STUDENT OF MACQUARIE UNIVERSITY, SYDNEY

The unfortunate injustice of removal of children in Cape Barren Island from their  mainland started with the establishment of Australian colonial government in 1881. After the advent of the Australians in the cape barren islands the population of the island downscaled by a high margin. Most of the people of cape barren island came from the islands which were surrounding the main island and were of mixed decent. The intervention of the government increased with the introduction of Cape Barren Act [1]in 1912 which provided the Tasmanian Government to interfere with the social and cultural  aspect of the indigenous people who were termed as ‘Half Blood’.[2]

The aboriginal people, even though did not had much connection with the outer world, had to face many atrocities due to the government of Tasmania. The removal of children which was consider to be a welfare act by the government was regarded as a political conquest. In 1935 another policy was adopted to remove the children from the island. The Infant Welfare Act 1935,[3] gave  the head teacher  authority and powers to act as a police constable and remove children on the ground of neglect.The instances like poverty, alcohol abuse, the refusal to adopt agricultural lifestyle by aboriginal and the people who were unable to follow rules established in the 1912 Act carried a risk of losing the children. The children of the aboriginals were forcibly taken away from Cape Barren Island. Their parents didn’t know where their children were. Removed children never made to meet their parents. Such removal of the children is termed as ‘stolen generation’

In recent times, the government has made some amends in relation to the consequences that the aboriginal people had to face. The Aboriginal Lands Amendment Act 2004 [4]was passed by Parliament in March 2005 which altered and returned 42,706 hectares of land on the cape barren island and 8,149 hectares on the Clarke Island back to the Tasmanian Aboriginal community. [5]After winning the election at that time Lennon introduced the Stolen generation of Aboriginal Children Act [6]in 2006 which established that a 5 million dollar fund for ex-gratia payments to the aboriginals. Many other social and political aspects have been touched which provide employment and other health advances to the aboriginal people[7].

As a consequence of the revelations of this past practice, litigation has been undertaken by members of the stolen generations in Australia. Various causes of actions relied upon by the plaintiffs are examined here in regard to the Crown’s liability for breaching fiduciary duties, the duty of care. However, the real question here is does this forceful removal of children and people from their motherland constitute a breach of torts? Many victims filed  cases for compensation and relied on the principles of tort, however , judges were often reluctant to accept this plea.  The basic principle of tort is to put the individual into the same position he or she would have been if the incident would not have taken place by providing compensations or damages in return of the suffering and difficulties they had to face.

In the case of Kruger v Commonwealth [8]also known as the Stolen Generation’s case,  is the major case on this issue. Eight aboriginal children were forcibly removed from their parents. Later on these children filed case challenging the legality of the Aboriginal Ordinance 1918[9] (‘Ordinance’) that gave the government the authority and powers to remove children from the islands.

It was argued that the Ordinance did not conform to the doctorine of separations of powers mentioned in the constitution of Australia and that  removal of the children constituted as Genocide. Another argument that had huge importance was that the ordinance restricted the freedom of movement and association of the plaintiffs. The court in regard to these arguments held that the freedom of movement is not only based on the expressed rights such as the freedom of interstate commercial travel but rather a implied freedom of political communication that maybe subjected to limitation that are reasonable and adapted to serve a certain end. Justice Toohey held  in favour of the ordinance and observed that considering the standards and perceptions at that time, the ordinance was not invalid.[10] Brennan CJ and Dawson J did not decide whether there was an implied freedom of political movement or not. However,  Brennan CJ held that the provisions did not impede with the freedom of political communication therefore were invalid.[11] Guadron J was the only judge who felt that the some of provisions of the ordinance were invalid and held that sections 6, 16 and 67(1)(c) were not necessary.[12]

The plaintiff  in  Williams v Minister[13] was of aboriginal descent. Following her birth in the early 1940s she was placed, on her mother’s request, under the control of the Aboriginal Welfare Board under Aborigines Protection Act 1909  s 7(2)[14]. The plaintiff asserted that the Board had failed to provide for her custody, maintenance and education and, she alleged, that in consequenceof these childhood experiences she suffered a personality disorder. She further claimed that she had been denied bonding and attachment and had been a victim of maternal deprivation and as a consequence suffered a disorder ofattachment. In turn the plaintiff sought damages for negligence, breach of fiduciary duty, breach of statutory duty and for trespass. Abadee J  rejecting the claim of plaintiff concluded that there were ‘no economic interests at stake’ a fiduciary duty should not beextended to the circumstances. In regard to the duty of care, for policy reasons, particularly the potential for a ‘floodgate’ of litigation, Abadee J refused to find that a duty of care was owed to an institutionalized child.[15]

Another case which is an important judgement on  tort law relating to the  victims of stolen generations to get compensation for  both psychologically and culturally losses is the State of South Australia v Lampard-Trevorrow 2010[16] (‘Trevorrow’).  Here, M. Trevorrow, an aborginal  who was removed from the islands when he was of 11 months, filed a case, claiming that he was falsely imprisoned by the white family which was given charge to take care of him. However the court stroked down this plea as it held that the family was doing its duty of taking care of the child and he himself might not have known that they were not his real parents at such a young age. The court also held that false imprisonment require unlawful restrain but the Aborigines Protection Act gave the government authority to remove children. Fortunately the Supreme Court of South Australia finally granted a 775 000 dollars to M. Trevorrow’s widow on the ground of the government’s negligence. [17]

There were plenty of claims made by the victims of the stolen generation on the basis of torts principle and most of them were declined on the reasoning made by the judges in the above cases.

However, Court in Canada were considerate in accepting the claims filed by the aboriginals.

The aboriginal residential schools first started to establish around 16 century. In 1874 the government of Canada began to intervene in the working of these school for the purpose of resolving the problem of  Indian Children. Under Indian Act 1894 the government made legislation which required attendance in the residential schools by the aboriginal Indian children. Some of them voluntarily took up school others were forcefully taken away with or without their parent’s consent. With the passage of time, residential school were operated with a joint venture of the government and the church. As the introduction of the provincial school, the number of students decline in the residential schools and in 1969 the aboriginal residential schools turned into a the sole responsibility of the federal government. The decline in the number of schools result in the decline in the standards of dorms and other facilities. There was lack of sanitation and proper food and clothing, sexual abuse and excessive physical punishments were common and the standard of education was minimal due to which the children had to go through a lot of suffering and atrocities.[18]

In Blackwater v Plint (No 2)[19]; the court held that Canada had breached its non-delegable statutory duties owed to the children under the Indian Act. By contrast, in Blackwater v Plint (No 4)[20], the court concluded that the non-mandatory nature of the language in the Indian Act meant there was no non-delegable statutory duty. As noted above, the 8 May 2006 agreement does not remove the right to litigate and thus an individual may still bring a claim if they are unhappy with the extent of compensations.

 However I think in Australia the tort theories and principles are not reliable for the victims of stolen generations as they do not touch the legal issue of the case. The fundament problem is that the claim does not lead to the heart of the issue and loses its significance which the most crucial aspect to Aboriginal people. The widespread removal of the aboriginal children justified the overtly racist ‘worldview’ and the devastating effects of the removals on the societies, communities and specifically the individuals. The problem still persist after the successful use of a particular legal forum and the effects of removal were also not considered there. Rather, the injuries from criminal acts which were followed by the removal were compensated.[21]Unlike in Canada ,Australian courts do not usually provide compensation to the  victims of stolen generation under principles of tort on the ground of breach of fiduciary duty and neglect. In Canada the torts law has provided a different meaning to the claims of the aboriginal people. The Canadian Aboriginals have got compensations against the federal Canadian government of the injuries and suffering they had incurred in the aboriginal residential schools.[22]

The Stolen Generations not only suffered physically but their removal also has had a deep impact on their psychological and cultural sphere. At the time of removal the children were forced to move from their motherland, away from there parent and were expected to live a life with strangers. Some children were very young at the time of removal so it did not affect them but later when they grew elder and wiser, they felt the injustice and frustration. These factors led children to depression, alcoholism, drug addicts and mental instability. The cultural sphere of the cape barren island and other  indigenous islands also deteriorated as the youth and the next generation who were expected to continue their preserved culture was taken away.

The principles and tort theories do not consider these spheres and social aspects that happened at that time and the judgements are usually relied on the evidence and arguments. The claims of stolen generations have always been neglected and the cultural and social factors are unlikely to be considered. Therefore according to me the outcome of the court proceedings are unfair as the stolen generations have suffered a lot in their past time and I believe a it is very difficult to provide a number for an individuals suffering and anguish.

Historically it have been difficult for the aboriginal to enforce their legal right even where the legislations have not denied it. At present the law has been used to repress the aboriginal people in Australia and as a tool to discourage people in accepting themselves as a legal subject who are capable of using law to protect themselves. [23]

The cases which were successful did not establish a precedent and even though the defendants agreed to settle the matter, the court has not ruled in favour of the plaintiffs. Even after the successful establishment of the liability of the government toward the stolen generation no case law was developed to help the aboriginal people.

Moreover the litigation tend to rise some expectations that only individual monetary compensation are appropriate for the redressal of the sufferings and damages of the stolen generations. This approach of Litigation does not provide more collective answers to the anguish of the families and also ignoring the cultural distress in the community.[24]

The Tasmanian elites began to engage in national reparation in the mid 1900s. Since then the Government has made apology to the stolen generation and have provided with amendment in the previous acts to support the aboriginal people.

One of act of reparation was seen with the introduction of Aboriginal Lands Bill [25]in 1995.The Act provided with the return of 12 main sites to the aboriginals and the task of managing this was given to the Aboriginal Land Council of Tasmania which was established under this act. The members of the of the council to were chosen for the aboriginal community itself. The Act demanded the council to perform tasks which benefited the community of the stolen generation. The introduction of Stolen Generations of Aboriginal Children Bill 2006 [26]was another notable amendment that help the aboriginals gain some financial stability. It enabled the member of the stolen generations to apply for compensations which the government had established. Although the Tasmanian government took measures to reform the wrongdoing the commonwealth do not provide these measures as Lennon also spoke in his interview ‘I think Tasmania grew up that day. To this day we’re still the national leaders on many of the Aboriginal issues and that’s our legacy socially. The great thing about it was that it didn’t cause any controversy at all so it ought to have been a lesson too the rest but sadly it wasn’t’.[27]

The Canadian and the Australian Government in relation to resolve the issues of the Stolen Generation have take up far more different approaches. The decision of the Australian courts just provides a small reflection on the broader issue as to how the aboriginal in Australia obtain justice. By contrast the Canadian government have taken a step forward to apologise to the aboriginals who suffered in the residential schools and had to go through all many difficulties. In litigations where the Australian Government has forcefully utilized the potential defences of Statue of limitations, the Canadian government tried to waive these to provide support and trust to the stolen generations. The Canadian Government instead to using the potential defences agreed to provide greater compensations take will take these issue out of adversarial forum of courts. The above discussion provides that the unsuccessful claims of the stolen generation in Australia was not purely a matter of political accountability but also the judicial doctrine has also been involved to prevent recourse through the Australian courts. Unlike the Australians, the Canadian aboriginal claimants have successfully got the compensations, for the atrocities they had to face in the residential schools, against the government through the Canadian courts. The damages under the Canadian cases were claimed in regard to crown’s fiduciary duties and the duty of care towards the children of the residential schools.[28]

While the plaintiffs in the Canadian cases were finally successful, the cases in Australia were being ignored and court was still reluctant in providing redressal to the stolen generations.

[1] Cape Barren Act 1912 (Tas).

[2] Australian Human Rights Commission, Bringing them Home (Report, April 1997).

[3] Infant Welfare Act 1935 (Tas).

[4] Aboriginal Lands Amendment Act 2004 (Tas).

[5] Maria Rae, ‘When reconciliation means reparations: Tasmania’s compensation to the stolen generations’ (2015) 24(4) Griffith Law Review 640.

[6] Stolen generation of Aboriginal Children Act 2006 (Tas).

[7] Maria Rae, ‘When reconciliation means reparations: Tasmania’s compensation to the stolen generations’ (2015) 24(4) Griffith Law Review 640, 649.

[8] Kruger v Commonwealth (1997) 190 CLR 1.

[9] Aboriginal Ordinance 1918 (Cth).

[10] Kruger v Commonwealth (1997) 190 CLR 1, 93.

[11]  Ibid 45.

[12] Ibid 129.

[13] Williams v Minister [1999] NSWSC 843.

[14] Aborigines Protection Act 1909  (NSW) s 7(2).

[15] Williams v Minister [1999] NSWSC 843.

[16] State of South Australia v Lampard-Trevorrow [2010] SASC 56.

[17] Antonin Malinge, ‘State of South Australia v Lampard-Trevorrow (TD 30)’, A Legal English Blog (Blog Post) https://ninetenthsblog.wordpress.com/2016/03/16/state-of-south-australia-v-lampard-trevorrow-td-30/.

[18] Cassidy and Julie, ‘The Stolen Generations – Canada and Australia: The Legacy of Assimilation’ (2006) 11(1) Deakin Law Review 131.

[19] Blackwater v Plint (2001) 93 BCLR (3d) 228.

[20] Blackwater v Plint (2005) 258 DLR (4th) 275.

[21] Chris Cunneen and Julia Grix, ‘The Limitations of Litigation in Stolen Generations Cases’ (Research Discussion Paper, No 15, Institute of Criminology, University of Sydney Law School).

[22] Cassidy and Julie, ‘The Stolen Generations – Canada and Australia: The Legacy of Assimilation’ (2006) 11(1) Deakin Law Review 131.

[23] Chris Cunneen and Julia Grix (n 20).

[24] Ibid.

[25] Aboriginal Land Bill 1995 (Tas).

[26] Stolen Generations of Aboriginal Children Bill 2006 (Tas).

[27] Maria Rae (n 7).

[28] Cassidy and Julie (n 21).