The arrival of settlers in Liberia and Australia brought a new legal order with racist and gender ideologies that perceived Indigenous women559 as subservient to men.560See chapter 3 for more discussion on gender relations between Indigenous Peoples and settlers in Liberia and Australia. Pervasive gender inequalities compelled white women in Australia and elite African American settler-colonist women in Liberia to fight for gender parity. Albeit contentious,561 feminism was built on the affluence of Western white women, as discussed in chapter 1. Therefore, white feminists inherently leverage white privilege, i.e., advantages and benefits that white people derive socially, politically, legally, and economically, as a result of being white, to help them gain
556 Emma Masters, ‘Remote Indigenous Outstation Rejects Federal Policy and Opens Own School’ ABC News
(Darwin, NT), 22 July 2015 <http://www.abc.net.au/news/2015-07-22/remote-nt-indigenous-community-opens-own- school/6639220>.
557 Kay, above n 313; ibid; Economywatch, above n 314; Staff Reporter, ‘Liberia: Rich but Poor - African Progress
Panel Lists Resource Cursed’ Front Page Africa (Monrovia, Liberia), 8 May 2014
<http://www.frontpageafricaonline.com/index.php/politic/1585-liberia-rich-but-poor-africa-progress-panel-lists- resource-cursed-nations>.
558 Alfred, above n 455.
559 Libby Connors, ‘Women on the South-East Queensland Frontier’ (2008) 15(2) Queensland Review 19. 560 Carol Thomas and Joanne Selfe, ‘Aboriginal Women and the Law’ in Proceedings of a conference held 23-25 June 1992 (Australian Institute of Criminology, 1993) 1, 168
<http://www.aic.gov.au/media_library/publications/proceedings/21/thomas.pdf>.
561 Bell, ‘XIV. `White Women Can’t Speak?’, above n 246; Jackie Huggins et al, ‘Letter to the Editors: Response to
“Speaking About Rape Is Everyone’s Business”’ (1991) 14(5) Women’s Studies International Forum 505; Rebecca Stringer, ‘Impractical Reconciliation: Reading the Intervention through the Huggins–Bell Debate’ (2012) 27(71)
Australian Feminist Studies 19.
some level of gender equality with white men.562 Notwithstanding the general lack of support from Western feminism,563 Indigenous women in both post-war Liberia and Australia have been making invaluable contributions to the gender-justice and equality agenda for a long time (e.g., Truganini564 in Australia and Chief Suakoko in Liberia). For example, during the civil war in Liberia, Indigenous women movements spearheaded the peace process that not only brought the civil war565 to an end in 2003 but also instigated the creation of United Nations Security Council
Resolutions (UNSCR) 1325 2000 (on women and peace and security)566 and United Nations
Security Council Resolutions (UNSCR) 1820 2008 (on sexual violence in war).567 Similarly, in Australia, Aboriginal women’s advocacy for change cuts across disciplines, ages, and professions.568 However, serious gaps in Indigenous women’s treatment within social, political, and legal spheres still exist.
Violence against Indigenous women and girls in Australia is still not adequately understood or addressed by the people and institutions charged with its elimination. Carol Thomas and Joanna Selfe lament a problematic lack of statistical data on violence against women in the legal system.569 The lack of data feeds into a widespread ignorance of systematic gender violence, rights of the abused, and a resulting reluctance to name violence for what it is: abuse of girls and women, says Diane Bell.570 Bell argues that the task of confronting violence against women who are already on the margins of society requires theorising around the issues of race, indigeneity, and gender intersectionality.571 Openly discussing the issue of rape in Aboriginal society is particularly difficult, partly because of a genuine fear of reinforcing racial stereotypes of
562 Victoria Hovane, ‘White Privilege and the Fiction of Colour Blindness: Implications for Best Practice Standards
for Aboriginal Victims of Family Violence’ (2006) 27 Australian Domestic & Family Violence Clearinghouse Newsletter 8.
563Third World Women and the Politics of Feminism (Indiana University Press, 1991) 3.
564 Max Delano Beers, Max Adventures: Redemption of Truganini (Max Delano Beers and Amazon Digital Services,
Smashwords, 2012).
565 Leymah Gbowee and Ali Benton, ‘Leymah Gbowee: An Extraordinary Life’
<http://www.abc.net.au/radionational/programs/drive/leymah-gbowee3a-an-extraordinary-life/4626452>; UN Women, above n 212; Press, above n 106; Pari Farmani, Etweda Cooper (April 2007) Inclusive Security <https://www.inclusivesecurity.org/experts/etweda-cooper/>; Peace Women Across the Globe, ‘Mary Brownell (Liberia)’ <http://wikipeacewomen.org/wpworg/en/?page_id=3096>; Ghana Business News, ‘Dr. Evelyn Kandakai, First Woman to Head WAEC after 62 Years’ Ghana Business News (Accra, Ghana), 11 April 2015
<https://www.ghanabusinessnews.com/2015/04/11/dr-evelyn-kandakai-first-woman-to-head-waec-after-62-years/>.
566 The UNSCR 1325 was created six years after the Liberia Women Mass Movement. Understanding that the impact
of armed conflict on women and girls mandates effective institutional arrangements to guarantee their protection and full participation in promoting international peace and security, paragraph 1 of UNSCR 1325 ‘[u]rges Member States to ensure increased representation of women at all decision-making levels in national, regional and international institutions and mechanisms for the prevention, management, and resolution of conflict’.
567 Reaffirming commitment to UNSCR 1325 (2000), UNSCR 1820 (2008) specifically focused on the impact,
prevention and cessation of widespread systematic wartime sexual violence against girls and women.
568 Larissa Behrendt, Indigenous Legal Relations in Australia (Oxford University Press, 2009)
<http://www.amazon.com/Indigenous-Relations-Australia-Larissa-Behrendt/dp/0195562011>; Concerned Australians, Enough Is Enough - Statement on the Stronger Futures in the Northern Territory Bill 2011 and Two Related Bills (2011) <http://vimeo.com/33827160>; Megan Davis, ‘How Do Aboriginal Women Fare in Australian Democracy?’ (2007) 6(28) Indigenous Law Bulletin 9; National Centre of Biography, Peris, Nova (1971-?) (10 August 2017) Indigenous Australia <http://ia.anu.edu.au/biography/peris-nova-17821>; Anita Heiss, Government Policy in Relation to Aboriginal People (2013) Barani <http://www.sydneybarani.com.au/sites/government-policy-in- relation-to-aboriginal-people/>; Marilyn Lake, Faith: Faith Bandler, Gentle Activist (Allen and Unwin, 2002).
569 Thomas and Selfe, above n 560, 170–171.
570 Bell, ‘Intra-Racial Rape Revisited: On Forging a Feminist Future beyond Factions and Frightening Politics’, above
n 518.
571 Ibid.
retribution and exhibiting cultural arrogance.572 Rather than prioritising women in research and law reform, their suffering is being clumped together and branded as ‘domestic violence’, ‘customary practice’, or an ‘expression of distress’.573 When an opportunity does arise to offer Indigenous women meaningful participation in addressing social ills that befall them, doing so is still a challenge. For example, Elena Marchetti criticises the Royal Commission into Aboriginal Deaths in Custody (hereafter RCIADIC) for failing to consider the problems confronting Indigenous women.574 Marchetti argues that RCIADIC did not dedicate a chapter to considering the problems of Indigenous women and ‘…expressly referred to Indigenous women in only five of its 339 recommendations’575 (see Appendix AX for more detail). This lack of focus on Indigenous women’s suffering allows the perpetuation of violence with modes specific to Indigenous Peoples.
Indigenous women face unique threats of violence that require targeted interventions to eliminate. Kerry Arabena submits that Aboriginal and Torres Strait Islander women’s reproductive health has been so subjected to colonial control that it constitutes structural violence. According to Arabena, Indigenous Peoples are not only seen as property that benefits Western medicine but also is degraded to sex symbols. Arabena’s themes and Bell’s thesis both contain references to sexual and reproductive violence against Aboriginal girls and women committed by both settlers and Indigenous males. Assessment of Bell’s and Arabena’s views acknowledges that
protection for Aboriginal girl and women survivors of systematic violence must extend beyond physical safety and physical location to incorporate cultural safety, protection from threats to cultural identity, cultural appropriateness, and cultural relevance. Clearly, protecting Indigenous girls’ and women’s rights must be seen through a human rights lens. Otherwise, mainstream
services will continue to employ colour-blind practices576 and implement white models that
disempower and fail to promote the safety of Aboriginal survivors.577 International, regional,
national, and local legal instruments and mechanisms may serve to define and protect those human rights.
Liberia and Australia578 have legal obligations under both domestic and International law to protect Indigenous women’s rights. International women scholars are raising the gender justice platform to prominence, subject to the adoption of Convention on the Elimination of all forms of
572 Ibid. 573 Ibid.
574 Elena Marchetti, Missing Subjects: Women and Gender in the Royal Commission into Aboriginal Deaths in Custody (PhD Thesis, Faculty of Arts, Griffith University, 2005) 2–3.
575 Ibid 3.
576 Lorana Bartels, Indigenous Women’s Offending Patterns: A Literature Review (Australian Institute of
Criminology, 2010) 30. A point is worth noting here of Bartels research, which observed that ‘Indigenous women are increasingly over-represented in criminal justice processes, occurring at an intolerably high level of family violence, over policing for selected offences, ill health, unemployment and poverty’.
577 Hovane, above n 562.
578 Andrew Byrnes, ‘The Convention on the Elimination of All Forms of Discrimination against Women and the
Committee on the Elimination of Discrimination against Women: Reflections on Their Role in the Development of International Human Rights Law and as a Catalyst for National Legislative and Policy Reform’ 12
<http://law.bepress.com/cgi/viewcontent.cgi?article=1212&context=unswwps-flrps10>.
Discrimination against Women 1979, the United Nations Convention on the Rights of the Child
1989, the Cairo Conference on Population and Development 1994579 and the United Nations
Declaration on the Rights of Indigenous Peoples 2007. Sub-regionally, Liberia is party to the
African Charter on the Rights and Welfare of the Child 1990 and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2003. However, it is important to examine these instruments beyond signing and ratifying, to evaluate their ability to address the intersecting factors affecting humans who are both Indigenous and women. For example, Rauna Kuokkanen (2015) points out that the Declaration on the Rights of Indigenous Peoples 2007 is widely understood to reflect rights already found in other international human rights treaties, ‘[y]et out of 46 Articles the UNDRIP mentions women only in three’.580 The
Convention on the Elimination of all Forms of Discrimination against Women 1979 is a non- binding international human rights instrument. Apart from the fact that General Comments made by its 23 all-female committee members include no enforcement mechanism, the document makes no reference to Indigenous women. Therefore, CEDAW must be interpreted in tandem with other human rights documents such as the UNDRIP.581 Further, international and regional instruments must still be domesticated in State law and policy to affect individuals in those States.
Apart from the Australian Human Rights Commission and the Independent National Human Rights Commission (a national body in Liberia), states and counties have been slow to establish and implement local human rights institutions and laws to protect Indigenous women’s rights. Although the Liberian Constitution 1986 contains a bill of rights, there are no public human rights laws have been established at the county level in Liberia.582 Conversely, the Commonwealth of Australia has no Bill or Charter of Rights583 and the Australian Capital Territory is the first of only two States in Australia to pass a Human Rights Act 2004. According to Jon Stanhope, the Human Rights Act was part of a broad program of the Australian Capital Territory Government, which included commissioning Hillary Charlesworth’s inquiry into a Bill of Rights for the
579 UNFPA, International Conference on Population and Development, available at < http://www.unfpa.org/icpd>. 580 Lennox and Short, above n 114, 1–2. Available at SSRN: <http://ssrn.com/abstract=2414293>, 1-2. Article 21.2
calls for states to take effective measures to ensure the improvement of Indigenous peoples’ economic and social conditions whilst paying particular attention to ‘the rights and special needs of Indigenous elders, women, youth, children and persons with disabilities.’ Article 22.1 reiterates the need to attend to ‘the rights and special needs of Indigenous elders, women, youth, children and persons with disabilities’ in implementing the Declaration. Finally, Article 44 states that the Declaration applies equally to ‘male and female Indigenous individuals.’ Besides these three articles, the language of the UNDRIP is gender-neutral and it does not elaborate what the ‘rights and special needs’ of women or the other aforementioned groups might be.
581 Helen Tugendhat and Eleanor Ditaan-Bang-oa, Realising Indigenous Women’s Rights: A Handbook on the CEDAW (Tebtebba Foundation, Forest Peoples Program and Asia Indigenous Women’s Network, 2013) x. Also see, Committee on the Elimination of Discrimination against Women (CEDAW), Concluding Observations of the Committee on the Elimination of Discrimination against Women: Australia, 12-30 July 2010,
CEDAW/C/AUS/CO/7, 7-8 and Committee on the Elimination of Discrimination against Women (CEDAW), Concluding Observations of the Committee on Combined Seventh and Eighth Periodic Reports of Liberia: Liberia, 24 November 2015, CEDAW/C/LBR/CO/7-8, 4-6, and 8.
582 Seodi White and Rosemarie James, ‘An Analysis of Laws from a Gender Perspective in Liberia: Final Assessment
Report’ (Government Report, Office of the Gender Advisor (UNMIL) and Ministry of Gender Development, 1 August 2009) 55, 12–16.
583Bills of Rights in Australia: History, Politics and Law (University of New South Wales Press, 2009) 23
<http://www.amazon.com/Bills-Rights-Australia-History-
Politics/dp/1921410175/ref=sr_1_2?s=books&ie=UTF8&qid=1362561405&sr=1- 2&keywords=Bills+of+rights+in+australia>.
Australian Capital Territory, to decriminalise abortion.584 Note that the focus on abortion is not an issue unique to Aboriginal women. Although the Australian Capital Territory’s Human Rights Act applies only to territorial law, Jeremy Gans argues that the Human Rights Act has had three major, albeit precarious, national impacts:
1) its enactment on 10 March 2004 broke a century-long taboo on domestic human rights law protection in Australia;
2) as the first Australian domestic human rights law, it has now generated the first decade’s worth of human rights precedents to be considered in other Australian jurisdictions; and
3) its enactment led directly to the formation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth.).585
The Attorney General of the Australian Capital Territory, Simon Corbell, remembers the difficulties of implementing the Human Rights Act:
Those of us who remember the lead up to the Human Rights Act being passed by the Legislative Assembly might remember the grim warnings in the media around the effect a Human Rights Act would have on the Territory. Despite the evidence, we had about the kinds of effects Human Rights legislation had had in other jurisdictions, we were given to understand that everything would become a human rights issue, people would prosecute outlandish rights, and the courts would grind to a halt under the weight of human rights litigation. And then 1 July 2004 came and went, and life continued.586
Heidi Yates affirms that the Australian Capital Territory’s Human Rights Act shines a ray of hope on other jurisdictions where, anecdotally, public servants may feel less empowered in their decision-making, and where it may help to identify potential conflicts even when the ruling government is antagonistic towards such legislation.587The existing Australian Human Rights
Commission and the establishment of the Human Rights Acts in the Australian Capital Territory and Victoria have been met with much enthusiasm. However, their impact on Aboriginal women has yet to be determined.
Ensuring that local implementation of human rights law will benefit Indigenous women requires understanding the issues and perspectives of those women. Bell argues that new understandings tend to emerge when women are allowed to speak, as in the gutsy provocation of renowned Australian film actress and Aboriginal activist Rosalie Kunoth-Monks:
I am not something that fell out of the sky for the pleasure of somebody putting another culture into this cultured being … I am not an Aboriginal, or indeed indigenous, I am ... [a] first nation’s person…a sovereign person from this country. I speak my language, and
584 Jon Stanhope, ‘ACT Human Rights Act - Tenth Anniversary’ (University Gathering at the Ten Years of the ACT
Human Rights Act Continuing the Dialogue, Acton, ACT, 2014).
585 Jeremy Gans, ‘The Impact of the Human Rights Act 2004 (ACT) on Other Australian Jurisdictions’ (University
Gathering at the Ten Years of the ACT Human Rights Act Continuing the Dialogue, Acton, ACT, 2014).
586 Simon Corbell, ‘10 Years of the Human Rights Act Conference: Speech by the Attorney-General of ACT’
(University Gathering at the Ten Years of the ACT Human Rights Act Continuing the Dialogue, Acton, ACT, 1 July 2014)
<http://www.hrc.act.gov.au/res/10%20Years%20of%20the%20Human%20Rights%20Act%20Conference%20Speec h.doc>.
587 Heidi Yates, ‘The Impact of the Human Rights Act in the Community’ (University Gathering at the Ten Years of
the ACT Human Rights Act Continuing the Dialogue, Acton, ACT, 2014).
I practice my cultural essence of me…don’t try and suppress me, and don’t call me a problem, I am not the problem.588
However, Bell warns that women’s perceptions of themselves present analytical challenges to
understanding their contribution to a society that is constrained by male dominance.589 An
example is Caroline Bledsoe’s controversial assertion about Liberian traditional female society, ‘…that Sande seeks to produce symbolically pure adult women as well as bonds of female
solidarity…[however,] Sande elite often side with elite men and exploit subordinate women’.590
Against this backdrop, extreme care must be taken when addressing systematic gender violence in collective terms such as ‘feminism’ or human rights, since both males and females are capable of inflicting harm, albeit at different rates; and, international law instruments that protect women are not implemented and enforced simply because a state party signs or ratifies them. The goal of this research is to seek insights from Indigenous Women Advocates and other participants into how such challenges should be tackled.