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Unlocking the Alienation: A Comparative Role for Alien Torts Legislation in Post-colonial Reparations Claims?

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Abstract

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the Australian Prime Minister’s formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted.

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Notes

  1. The Terms of Reference of the National Inquiry are published in Commonwealth of Australia, Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997, Canberra) hereinafter Bringing them Home. The report is available at <http://www.hreoc.gov.au/social_justice/bth_report/index.html>.

  2. Bringing them Home (1997, Canberra) at 216.

  3. Bringing them Home (1997, Canberra) at 217.

  4. Bringing them Home (1997, Canberra) at 218.

  5. Bringing them Home (1997, Canberra) at 226, 229.

  6. Bringing them Home (1997, Canberra) at 243.

  7. Principle 4, Theo van Boven, “Final Report of the Special Rapporteur of the United Nations, Study concerning the rights to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” (1993) UN Doc. E/CN.4/Sub.2/1993/8.

  8. Principle 6, Theo van Boven, “Final Report of the Special Rapporteur of the United Nations, Study concerning the rights to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms” (1993) UN Doc. E/CN.4/Sub.2/1993/8.

  9. Bringing them Home (1997, Canberra), Recommendation 4 at 247.

  10. The State of Tasmania has established a compensation scheme, and the State of Queensland has provided some compensation for stolen wages.

  11. See the Agreement, Treaties and Negotiated Settlements Project website, ‘Gathering Strength: Canada’s Aboriginal Action Plan 1998’ (28 September 2004) for a good overview and links at http://www.atns.net.au/agreement.asp?EntityID=2362 (accessed 28 May 2009).

  12. For a discussion of the role of international law in domestic courts, see Benvenisti (2008).

  13. Jaensch v Coffey (1984) 155 CLR 549; Tame v New South Wales (2002) 211 CLR 317.

  14. Alcock v Chief Constable of the South Yorkshire Police (1991) 4 All ER 907.

  15. McLoughlin v O’Brian (1983) 1 AC 410. As noted, while cases concerning what is known as “nervous shock” provide such an exception, this area of law has recently both expanded and contracted under common law and through statute. See (Butler 2004).

  16. Bill Jonas, “Restoring identity—achieving justice for the stolen generations” address at the launch of Restoring Identity: Final report of the Moving Forward consultation project, (27 September 2002, Sydney) available at http://www.hreoc.gov.au/about/media/speeches/social_justice/restoring_identity.html (accessed 9 December 2008).

  17. In Andrews v Law Society (1989) 1 SCR 143, the Canadian Supreme Court interpreted the right to equality in s15 of the Canadian Charter of Rights and Freedoms for the first time, and held that actions based on notions of equality should take into account the effects of discrimination on the particular individual or group concerned. It observed that the identical treatment may result in inequality, and the accommodation of differences is the essence of equality. From this, it flows that an insult that would not be actionable if directed at one person might cause actionable psychological harm if directed at another with a recognised history of discrimination. In Janzen v Platy Enterprises (1989) 1 SCR 1252, the same court held that the emotional distress caused by sexual discrimination was an actionable form of psychological harm. The case of R v Keegstra (1990) 3 SCR 697 also supports the position that racist language can cause emotional damage of grave psychological and social consequence. Cumulatively, decisions such as these provide an impetus to consider extending the scope of actionable tortious conduct, for example in the Indigenous context.

  18. Section 46, Restatement of the Law (Second) Torts, (1965, American Law Institute).

  19. Abele (2004); Restatement (Second) of Torts §46; for example, see Rapkin v Rocque (2000) 97 F.2d 244.

  20. Bringing them Home (Canberra, 1997) at 218.

  21. See, for example, Stone v Wall (1999) 135 F. 3d 1438.

  22. Stone v Wall (1999) 135 F.3d 1438 at 1440.

  23. (2000) FCA 1084.

  24. (1997) 190 CLR 1.

  25. Aboriginal Legal Service of Western Australia, Telling Our Story (1995, Aboriginal Legal Service of WA).

  26. Bringing them Home (Canberra, 1997) at 2.

  27. For example, Vinson v Linn-Mar Community School District (1984) 360 N.W.2d 108.

  28. Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children (Canberra, 1997) at 56.

  29. Bringing them Home (Canberra, 1997) at 217.

  30. (1937) 51 CLR 1.

  31. Bunyan v Jordan (1957) 51 CLR 1 at 3 per Latham CJ.

  32. Again, Canadian jurisprudence has been influential in the recognition of this important principle by some judges in Australia, for example Toohey and Brennan JJ in Mabo (1992) 175 CLR 1 and Brennan J in Wik (1996) 141 ALR 129.

  33. Bringing them Home (Canberra, 1997) at 224.

  34. (1984) 156 CLR 41.

  35. (1984) 156 CLR 41 at 69.

  36. Bringing them Home (Canberra, 1997) at 225.

  37. Bringing them Home (Canberra, 1997) at 225.

  38. Bringing them Home (Canberra, 1997) at 226:

    “We can readily identify three ways in which Protectors and Boards failed in their guardianship duties to Indigenous wards or children to whom they had statutory responsibilities. In many cases the agents or delegates of the State similarly breached their fiduciary duties: missions, church institutions, foster carers and ‘employers’.”

    1. They failed to provide contemporary standards of care to Indigenous children when such standards of care were provided to non-Indigenous children in similar circumstances.

    2. They failed to protect the children from harm.

    3. They failed to involve Indigenous parents in decision-making about their children.

  39. American Law Institute, Restatement (Second) of Torts §500 (1965).

  40. Bringing them Home (Canberra, 1997) at 222.

  41. In 1874, the State Public Charities Commission of New South Wales reported that the “mechanical routine” of the “barrack system” was motivated less by concern for the welfare of the children and more by concern with efficiency and management. Moreover, it acknowledged that experience in England showed that such institutionalisation, as opposed to foster care in appropriate family environments, was “prejudicial to the healthy development of character, and to the rearing of children as good and useful men and women.” Bringing them Home (Canberra, 1997) at 227.

  42. Riggs v County of Banner (2001) 159 F.2d 1158; Abele (2004) at 25.

  43. Bringing them Home (1997, Canberra) at 60.

  44. Bringing them Home (1997, Canberra) at 12.

  45. For example Filartiga v Pena-Irala (1980) 630 F.2d 867 was brought by a Paraguayan national against a former Paraguayan police officer for a wrong committed in Paraguay; In Re Estate of Marcos Human Rights Litigation (1992) 25 F.2d 493 was brought against the estate of the former Philippines dictator for torture committed against the plaintiff’s son in the Philippines; Wiwa v Royal Dutch Petroleum Co (2000) 226 F.2d 88 was brought by Nigerian plaintiffs against a European oil company for acting in complicity with human rights violations committed by Nigerian government troops (for running information on the pending trial, see the website of the Center for Constitutional Rights at http://ccrjustice.org/ourcases/current-cases/wiwa-v.-royal-dutch-petroleum accessed 29 May 2009).

  46. Harold Berman, “The Alien Tort Claims Act and the Law of Nations” (2004) Research Paper 05-5 Emory University School of Law Public Law & Legal Theory Research Paper Series available at http://papers.ssrn.com/abstract=6666146 (accessed 10 December 2008).

  47. Kadic v Karadzic (1995) 70 F.3d 232 at 240.

  48. 28 U.S.C. §1350

  49. Filartiga v Pena-Irala (1980) 630 F.2d 876 at 877.

  50. Filartiga v Pena-Irala (1980) 630 F.2d 876 at 877 at 881.

  51. (1984) 726 F.2d 774.

  52. Tel-Oren v Libyan Arab Republic (1984) 726 F.2d 774 at 776.

  53. Tel-Oren v Libyan Arab Republic (1984) 726 F.2d 774 at 801.

  54. Harold Berman, “The Alien Tort Claims Act and the Law of Nations” (2004) No. 05-5 Emory University School of Law Public Law & Legal Theory Research Paper Series at 1, available at http://papers.ssrn.com/abstract=666146 (accessed 5 December 2008).

  55. (1992) 542 U.S. 692 at 737.

  56. The Blackstone trinity of violation of safe conducts, infringement of the rights of ambassadors, and piracy.

  57. At 737 the court said: “We assume, too, that no development in the two centuries from the enactment of §1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala, 630 F.2d 876 (CA2 1980), has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant way amended §1350 or limited civil common law power by another statute.”

  58. (1992) 542 U.S. 692 at para [5] of Breyer J’s concurrence.

  59. As these crimes already attract universal criminal jurisdiction, universal civil jurisdiction can be no more threatening: Sosa v Alvarez-Machain (1992) 112 S. Ct. 2188 at 2783.

  60. Bringing them Home (Canberra, 1997) at 231.

  61. Sosa v Alvarez-Machain (1992) 112 S. Ct. 2188 at 2761.

  62. Tachiona et al v Mugabe & ZANU-PF (2002) 234 F.Supp.2d 401.

  63. Tachiona v Mugabe (2002) 234 F.Supp.2d 401 at 411.

  64. Sitting in its diversity jurisdiction, a district court applies the conflict of law rules of the state in which it is located: see Klaxon v Stentor Electric Manufacturing Company (1941) 313 US 417. Exercising federal question jurisdiction, it applies the federal choice of law rules, and as the sui generis jurisdiction granted by the ATCA is arguably more closely analogous to the federal question jurisdiction, it is likely that the federal choice of law rules would be applied.

  65. Joseph (2004) at 55. See Tachiona at 418.

  66. What exactly the federal choice of law rules themselves are is another question without a certain answer. However, several cases suggest that the federal choice of law rules reflect the Restatement (Second) Conflict of Laws: Gruson (2003) at 263. The Restatement (Second) considers a list of general factors to consider, including the policies of the forum, needs of the international system and the relevant interests of other states in the subject matter at hand: American Law Institute, Restatement (Second) of Conflict of Laws, (1971) § 6(2). However, it also lists a number of factors for consideration specific to tort, which all point towards the application of Australian law in our case—the place of the injury, the place of the conduct causing the injury, the domicile, residence, nationality, place of incorporation and place of business of the parties and the place where the relationship between the parties is centred: Restatement (Second) of Conflict of Laws, (1971) § 145.

  67. Sosa v Alvarez-Machain (2004) 542 US 692 at 730.

  68. Filartiga v Pena-Irala (1980) 630 F.2d 876 para [54].

  69. Jimmy Carter, address to the United Nations 17 March 1977 (1977) Department of State Bulletin 322.

  70. For a brief review of Indigenous issues in the Southeast Asian region, for example, see Hocking et al. (2009).

  71. Foreign Sovereign Immunities Act 1976 §§ 1603–1611.

  72. For Canada, see the Residential Schools Agreement and Barbara Ann Hocking (2006); for a relatively recent decision in Australia, see Baird v State of Queensland (2006) FCAFC 162.

  73. (1995) 70 F.3d 232.

  74. (1995) 70 F.3d 232 at 245.

  75. (2005) 374 F.2d 331.

  76. (2006) 453 F.2d 633. That case was finally dismissed on the grounds that, at international law, the crime of conspiracy is limited to conspiracies to commit genocide and wage aggressive war, neither of which was alleged in the complaint: see at 663. However, other courts have been less restrictive in their view, such as the Cabello v Fernandez-Loria court below—see Nichols (2008) at 2177.

  77. Cabello v Fernandez-Larios.

  78. (2002) 205 F.2d 1325 at 1341.

  79. (2002) 395 F.3d 932; Nichols (2008), at 2186. The test in Unocal, given at 951, is whether the defendant rendered “knowing practical assistance, or encouragement, which has a substantial effect on the perpetration of the crime.”

  80. (2006) 453 F.2d 633 at 668.

  81. Bill Jonas, “Restoring identity—achieving justice for the stolen generations” address at the launch of Restoring Identity: Final report of the Moving Forward consultation project (27 September 2002, Sydney). Accessed at http://www.hreoc.gov.au/about/media/speeches/social_justice/restoring_identity.html (9 December 2008).

  82. Rev David Gill, “Reparations and Reconciliation—A Perspective from the Churches” address at Moving Forward: achieving reparations for the stolen generations conference (15 and 16 August 2001, Sydney) transcript accessed at http://www.humanrights.gov.au/Social_Justice/conference/movingforward/index.html (9 December 2008).

  83. http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/8EA9465ED0DD6850CA257418000E3DFF?opendocument (accessed 15 December 2008).

  84. Prominent Indigenous leader Noel Pearson, himself a separated child sent to St Peter’s Lutheran College in Brisbane, for example, has long praised the legacy of his schooling.

  85. Churches of Christ Aborigines Board submission 411 to the National Inquiry: Bringing them Home (1997, Canberra) at 252.

  86. The church is naturally reluctant to liquidate many of these assets, which may be of great spiritual or historical as well as monetary value. Nanette Hanson, CNBC News 19 April 2005, accessible at http://www.msnbc.msn.com/id/7558375/ (accessed 15 December 2008).

  87. Code of Canon Law 1983 c.1257, §1. Actually, it defines Church property as all property owned by public juridic persons, as opposed to private juridic persons. The latter are private associations of the faithful that the Code also gives some form of legal personality but is not relevant here because public juridic persons are of greater interest as potential defendants. Public juridic persons could be defined as an “aggregate of persons or things, constituted by operation of law or by an act of competent ecclesiastical authority as its own legal person”: see Cafardi (2005), at 363.

  88. Cafardi (2005), at 364. For example, in August 2005 the Diocese of Nashville shifted ownership of nine Tennessee properties into the names of parishes not named as defendants to a sex abuse lawsuit. See Sheila Burke, “As Lawsuit Looms, Catholic Church Transfers Ownership of Properties: Diocese Being Sued Puts Assets into Parishes’ Hands,” The Tennesean, 21 August 2005 accessible at http://www.bishop-accountability.org/news2005_07_12/2005_08_21_Burke_AsLawsuit.htm (accessed 18 December 2008).

  89. See Burnham v Superior Court (1990) 495 U.S. 604, noting the difference of opinion between Scalia and Brennan JJ as to why this is so.

  90. World-Wide Volkswagen Corporation v Woodson (1980) 444 US 286. For an example of long-arm statute validly invoked for a claim under the ATCA, see Odilla Mutaka Mwani, et al., v Osama Bin Laden & Afghanistan (2005) 417 F.3d 1.

  91. The courts of the United States are not, however, included in the Foreign Judgments Act 1991 (Cth), which provides a set of rules for the recognition of foreign judgments. Their recognition is governed by the less favourable common law.

  92. Stuart Clark, Dugan Cunningham, Rob McEvoy, “Enforcing US and other foreign judgments in Australia: what are the rules?” (2008) Defense Counsel Journal available at http://www.accessmylibrary.com/coms2/summary_0286-35069877_ITM (accessed 17 December 2008).

  93. See, for example, Stem v. National Australia Bank Ltd. [1999] FCA 1421 at [133] per Tamberlin J.

  94. Stuart Clark, Dugan Cunningham, Rob McEvoy, “Enforcing US and other foreign judgments in Australia: what are the rules?” (2008) Defense Counsel Journal available at http://www.accessmylibrary.com/coms2/summary_0286-35069877_ITM (accessed 17 December 2008).

  95. (1947) 330 US 501. See Traum (1958), at 440.

  96. It should be noted that the Australian test of forum non conveniens asks a subtly but significantly different question to the American test. Since Oceanic Sun Line Special Shipping Co v Fay (1988) 165 CLR 197 and Voth v Manildra Flour Mills (1990) 171 CLR 538, the Australian courts ask whether Australia is a ‘clearly inappropriate forum’ rather than whether it is the ‘most appropriate’ or ‘natural’ forum. This produces a higher bar for applicants of a stay on forum non conveniens grounds, as they must show that the lawsuit in Australia was oppressive or vexatious. Thus, the Australian law is in a sense more plaintiff-friendly with respect to forum non conveniens.

  97. See In Re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December 1984 (1986) 634 F. Supp. 842 per Keenan J.

  98. Peregrine Myanmar Ltd. v. Segal (1996) 89 F.3d 41 at 46.

  99. Piper Aircraft Company v Reyno Hartzell Propeller Inc (1982) 454 US 235 at 255.

  100. Wiwa v Royal Dutch Petroleum Co (2000) 226 F.3d 88 at 127.

  101. Gilbert v Gull Oil Co (1947) 330 US 501 at 509.

  102. Iragorri v United Technologies Corporation and Otis Elevator Company (2001) 274 F.2d 65.

  103. In Iragorri v United Technologies Corporation and Otis Elevator Company (2001) 274 F.2d 65 at 71–72.

  104. Wiwa v Royal Dutch Petroleum Co (2000) 226 F.3d 88.

  105. Wiwa v Royal Dutch Petroleum Co (2000) 226 F.3d 88 at 128.

  106. Underhill v Hernandez (1897) 168 US 250 at 252.

  107. Bigio v Coca Cola Co (2000) 239 F.3d 440 at 453.

  108. Braka v Bancomer (1985) 762 F.2d 222 at 224.

  109. For example, the statutory period for claims against the US government under the Federal Tort Claims Act 28 USC §2401(b) is 2 years; in New York, the statutory period for negligence/personal injury is 3 years and for intentional torts just 1 year under the New York Civil Practice and Law Rules Article 2 ss214, 215.

  110. (1987) 672 F. Supp. 1531.

  111. (2002) 281 F.3d 1004.

  112. (2002) 281 F.3d 1004 at 1011–1012.

  113. 28 USC §1350

  114. (2002) 281 F.3d 1004 at1012.

  115. Aboriginal Legal Service of Western Australia, submission 127 to the National Inquiry: Bringing them Home (1997, Canberra) at 368.

  116. Bringing them Home (Canberra, 1997) at 367.

  117. (1946) 327 US 392.

  118. (2002) 535 US 43.

  119. For example, in England, see the recent reversal by the House of Lords in the context of its decision in Stubbings v Webb [1993] AC 498.

  120. (2008) NY App Div (3rd Department) 462. Please note that this case was decided in a state rather than federal court.

  121. New York Civil Practice Law & Rules Article 2 s215.

  122. (1993) 148 FRD 114.

  123. Bringing them Home (Canberra, 1997) at 356.

  124. (1987) 672 F. Supp. 1531.

  125. (1987) 672 F. Supp. 1531at 1549. Cited in Weeramantry (2003b), at 635.

  126. Bringing them Home (Canberra, 1997) at 356.

  127. For example, see Link-Up NSW, http://www.linkupnsw.org.au/ (accessed 16 December 2008).

  128. Bringing them Home (Canberra, 1997) at 357.

  129. Bringing them Home (Canberra, 1997) at 357.

  130. Bringing them Home (Canberra, 1997) at 486.

  131. Muir v Alberta (1996) 132 DLR (4th) 695.

  132. (1996) 132 DLR (4th) 695 at 735.

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Authors and Affiliations

  1. Faculty of Law, University of Tasmania, Hobart, Australia

    Jason Grant Allen

  2. Juristische Fakultät, Universität Augsburg, Augsburg, Germany

    Jason Grant Allen

  3. Faculty of Law, Queensland University of Technology, Brisbane, Australia

    Barbara Ann Hocking

  4. Riawunna Centre, University of Tasmania, Hobart, Australia

    Barbara Ann Hocking

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Correspondence to Jason Grant Allen or Barbara Ann Hocking.

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Many thanks to Martin Davies, Admiralty Law Institute Professor of Maritime Law, Tulane Law School, New Orleans, USA for his review and criticism of the first draft of this paper.

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Grant Allen, J., Ann Hocking, B. Unlocking the Alienation: A Comparative Role for Alien Torts Legislation in Post-colonial Reparations Claims?. Hum Rights Rev 11, 247–276 (2010). https://doi.org/10.1007/s12142-009-0138-y

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