Scope and Limitations

This research is not a comparative study for reasons embedded in the diverse nature of both countries’ cultures, traditions, and histories. A robust comparative study necessitates the maintenance of constant environmental conditions to examine similarities and differences based on empirical observation. Since conducting such study is beyond the scope of this Ph.D. research, for the purpose of fostering debate and critical thinking, this study is limited to select Indigenous communities in Australia and Liberia.

The study considers the following polarities whilst refraining from imposing limited dichotomies such as advanced (eg, Australia) versus developing (e.g., Liberia) countries. Liberia is a post-war recovering State and Australia is not. Political, social and economic stability (e.g., access to justice or implementation of the rule of law) in Australia is relatively more organised and systematised, compared to Liberia. Australia is a continent-country (7.7 million square kilometres) whilst Liberia is one of Africa’s smallest countries (111 369 square kilometres), slightly bigger than the Australian state of Tasmania which is 90 758 square kilometres. The population of Liberia is 4.1 million, whilst that of Australia is 24 million. Historians use the concept of Indirect Rule215 _{to explain the colonial governing of Indigenous Peoples in Liberia. In} Australia, the strategy of assimilation describes the process of genetic admixture (i.e., miscegenation) to rid Indigenous Peoples in Australia of their existence.216 _{Even though the}

212 _{UN Women, Liberian Women Building Peace - Progress of the World’s Women (2011) UN Women: Progress of}

the World’s Women <http://progress.unwomen.org/case-study-liberia/>.

213 _{Marian Liebmann, Restorative Justice: How It Works (Jessica Kingsley Publishers, 2007) 25.}

214 _{Restorative Justice Council, What Is Restorative Justice / Restorative Justice Council (2013) Restorative Justice:}

Providing Quality Assurance and the National Voice for Restorative Practice

<http://www.restorativejustice.org.uk/what_is_restorative_justice/#.UjBvORYm5WA>.

215 _{Mahmood Mamdani, Define and Rule: Native as Political Identity (Harvard University Press, 1st ed, 2012); Levitt,}

above n 105, 138. In explaining the engrained nature of Liberia’s indirect rule system, Levitt (2005) asserts that it was during the Arthur Barclay’s regime that an increasingly centralised and authoritarian rule sparked a socio- political order that resulted in several settler-native conflicts between 1910 and 1931. He argues that the underlying philosophy of the indirect rule system ‘was to control the ruling lineages or indigenous elite who in turn controlled the African masses. The well-designed system allowed the settler ruling elite (the dominant class/authority) to use and manipulate indigenous structures to rule over the native population’.

216 _{Catriona Elder, ‘What Is the White in White Australia? A Reading of A. O. Neville, Australia’s Coloured}

Minority’ [1998] The Olive Pink Society Bulletin 28; Katherine Ellinghaus, ‘Absorbing the “Aboriginal Problem”:

continent of Africa is considered the cradle of humankind, generally, Indigenous Peoples in Liberia do not share a common linguistic heritage or social experience with Indigenous Peoples in Australia. For example, there are only 16 major language groups217 _{in Liberia today, whereas} about 145 of the 250 original languages still exist in Australia.218 _{Unlike Australia, in the earlier} history of Liberia, Indigenous Peoples were recognised by the state in various legal, political and social instruments via the Supreme Court jurisprudence of ‘separate but equal’,219 _{similar to the} arrangement in apartheid South Africa.220 _{See chapter 2 for more detail on the history of} Indigenous Peoples in Liberia and Australia.

Whilst there is little or no research comparing historical and cultural experiences, the parallel occurrence of systematic gender violence in the two countries is worth exploring; since, the essence of this study is to examine the ‘common collective’ of Indigenous experiences, whilst contributing to global gender-agenda advocacy. Indigenous groups in both Liberia and Australia refer to their social identity as ‘black’ even though the term has different connotations in each cultural setting. Both countries have a history of invasion and subjugation by alien settler- colonists who once had a troubled past (i.e., former convicts from the United Kingdom versus former slaves from the United States). Both States are colonies of settlers who arrived by ‘boats’ and dispossessed Indigenous Peoples of their native lands based on the doctrine of terra nullius.221 In both countries, the transplantation of colonial Anglo-Australian/Anglo-American-Liberian

Controlling Interracial Marriage in Australia in the Late 19th and Early 20th Centuries’ (2003) 27 Aboriginal History

183; Katherine Ellinghaus, ‘Biological Absorption and Genocide: A Comparison of Indigenous Assimilation Policies in the United States and Australia’ (2009) 4(1) Genocide Studies and Prevention 59; Anna Haebich and RHW Reece,

Neville, Auber Octavius (1875-1954) (1988) Australian Dictionary of Biography

<http://adb.anu.edu.au/biography/neville-auber-octavius-7821>; Auber Octavius Neville, Australia’s Coloured Minority: Its Place in the Community (Currawong Publishing, 1947).

217 _{Wulah, above n 169.}

218 _{McConvell, Marmion and McNicol, above n 180, 3.}

219 _{Marie Tyler-McGraw, An African Republic: Black & White Virginians in the Making of Liberia (The University of}

North Carolina Press, 2007) 176 <http://www.amazon.com/African-Republic-Virginians-Franklin-

American/dp/0807831670>; Lawrence D Taplah, Liberia, a Bulwark of Rage My First Home (Authorhouse, 2015) 2.

220 _{John Dugard, Human Rights and the South African Legal Order (Princeton University Press, 2015) 64}

<https://doi.org/10.1515/9781400868124>. According to Dugard, in the seminal decision of Plessy v Ferguson 1896, the Supreme Court of the United States approved the constitutionality of ‘separate but equal’ facilities for different racial groups. In South Africa, the doctrine was approved by the Appellate Division only in 1934 in respect of subordinate legislation.

221 _{Henry Reynolds, Aboriginal Sovereignty: Reflections on Race, State, and Nation (Allen and Unwin, 1996) 1–15;}

Huberich, above n 53, 254. Reynolds asserts that up until Mabo v Queensland, no. 2 (1992), European settlers and their descendants in Australia use terra nullius to set-up the Colony’s legal, political and constitutional framework. He provides an insight into the case put forward by Queensland, that: ‘…when in 1879, in the name of the Queen the colonial government annexed the Murray Islands it gained both sovereignty and the ownership of all the property, that from that moment forward the Islanders were only in occupation of their land with permission of the

government, that in point of law they could have been driven into the sea at the time’. But of course, six of the seven judges ruled in favour of Mabo, noting that, ‘…Murray Islanders were entitled, as against the whole world, to possession, occupation, use and enjoyment of their traditional land. The Islanders had owned their land before 1879; they had not been disposed by the claim of sovereignty; nothing the Queensland Government had done between 1879 and 1992 had extinguished their native title’ (Reynolds (1996) p2). Justice Brennan reasoned, ‘[t]he fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country. The policy appears explicitly in the judgment of the Privy Council in In re Southern Rhodesia in rejecting an argument (66) ibid., at p 232 that the native people ‘were the owners of the unalienated lands long before either the Company or the Crown became concerned with them and from time immemorial ... and that the unalienated lands belonged to them still’ (Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992) para 42).

common law usurps Indigenous Customary laws and traditional lore.222 _{Although both countries} have had their first female president/prime minister – indicative of some level of gender equality – the relatively high prevalence of systematic gender violence disproportionately affects Indigenous children and women. Generally, mainstream political leadership excludes Indigenous women from participating in both countries. Also, Indigenous Peoples in both countries have little or no representation within structures that govern their community or group, a diagnostic phenomenon William Easterly borrows from Rudyard Kipling called ‘the Whiteman’s burden’.223 That is, Indigenous Peoples are generally perceived as children who are incapable of managing their own affairs, and, hence, must be controlled by settler-colonists. Liberian and Australian Indigenous communities also experience land dispossession at the hands of the State.

Indigenous Peoples in Liberia and Australia have both experienced land dispossession, perpetrated by the State, in favour of multinational extraction industries and are still inundated with misappropriation of their lands, hunting grounds, water holes and sacred sites in the interest of neoliberalism (vis-à-vis greed, capitalism and exploitation).224 _{Susan Lawler}225 _{describes a case} in point in a La Trobe University podcast, where she discusses the utility of water in mining. Centring her presentation on the historical significance of the ‘gold rush’226 _{era in Victoria,} Australia, where mining companies constructed 127 dams, Lawler examines the specific manner in which mining had impacted the environment and Aboriginal communities in the Victoria area. According to her, tunnel races as long as 24 kilometres diverted water from an upper catchment area and reintroduced it for power, steam boilers, hydraulic loosing, rock crushing and gold washing, resulting in sludge formation and water pollution. Today, projects such as Save the Kimberly227 _{raise awareness around the threats faced by some 30 Aboriginal language groups} impacted by mining industries. Similarly, in Liberia, a report prepared by Forest Peoples Programmes highlights the struggles Indigenous Gola Peoples are experiencing with the Sime Darby Plantation project, where the government of Liberia is ‘giving away’ traditional lands to a foreign company for agricultural use without permission from the local people.228 _{Such practices} are all too common in Liberia, where American, Swedish and German companies such as Firestone, the Liberian-American-Swedish Minerals Company and Bong Mining Company left track records of extraction and plundering of natural resources in exchange for little or no benefits

222 _{Mick Dodson, ‘Customary Law and the Sentencing of Indigenous Offenders’ (2008) 20(5) Judicial Officers’} Bulletin 37.

223 _{William Easterly, The White Man’s Burden (Penguin Books, 2007).}

224 _{Irene Watson, ‘Aboriginality and the Violence of Colonialism’ (2009) 8(1) Borderlands 1.} 225 _{Susan Lawler, ‘Environmental Impact of Mining in Victoria (29 August 2012)’}

<https://itunes.apple.com/us/itunes-u/australian-history/id391323919?mt=10>.

226 _{The discovery of gold in the early 1800s in the Fish River of Victoria converged prospectors from Asia, Europe}

and American, not only resulted in massive transformation of the built/natural environment but also welled up social tensions of race and division as they relate to the land usage, ownership, and destruction.

227 _{Kirsti Melville, Red Dirt Dreaming Part One - The Kimberley (Australia Broadcasting Corporation, 2013); Save}

the Kimberly, Save the Kimberley: Wilderness, Culture, Heritage (2013) Home <http://www.savethekimberley.com/>.

228 _{Green Advocates and Forest Peoples Programme, ‘“We Who Live Here Own the Land” - Customary Land Tenure}

in Grand Cape Mount, and Community Recommendations for Reform of Liberia’s Land Policy & Law’ (Forest Peoples Programme, December 2012) 26.

to Indigenous communities. 229 _{Chapter 2 provides more insights on various types of} institutions/state violence inflicted against Indigenous Peoples in Liberia and Australia.

Considering these parallels between the two countries, the intention of this research project is to capture similar topical issues within a realistic time frame, insofar as available funding allows. In-depth analyses of the study include the history of colonialism and nation building, access to justice, access to social services (e.g., health, education and employment) and the practical application of Indigenous Customary Laws with respect to systematic gender violence and the rule of law. Harmful traditional practices, such as female genital cutting, forced marriage and denial of land and property ownership to Indigenous girls and women are also considered. An analysis of multiple data sources informs and enriches the scope and robustness of the study. Chapter 6 provides a detailed description of the research methodology.