Business As Usual

Is the law capable of protecting the vulnerable?

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Words || Shaheen Hoosen

Before it became known as Deadwood, the Black Hills in South Dakota belonged to the Lakota people, a Native American tribe. Treaty rights set the sacred land “apart for absolute and undisturbed use and occupation,” which they fought to protect. That is, until rumours of gold led the US Government to make a final attempt at negotiation. The Lakota people refused the offer and, soon afterwards, the land was taken by military force.

Mintabie, a South Australian town of 30-50 people, sits atop an opal mine in the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands and has an air of Deadwood about it. A Bill that was set to grant the Pitjantjatjara Council, an Aboriginal corporation that represents the Ngaanyatjarra, Pitjantjatjara, and Yankunytjatjara people, the best rights to the APY lands was endangered by an uproar of local miners fearing that they’d no longer be able to mine the Mintabie opal field. The Council diverted from the Lakota people, instead allowing the miners free access to the Mintabie precious stones fields to get the Bill passed. 

The common thread tying together these cases –  and much colonial and imperial land acquisition – is tribal capitalism’s distortion of property rights. Despite a treaty entitling the Lakota people to “absolute and undisturbed use and occupation” of the Black Hills, the US Supreme Court concluded that: 

“The only practical course was to secure to the citizens of the United States the right to mine the Black Hills for gold.”

This is a common feature in colonial and imperial history: the bending and moulding of the property rights of those possessing traits of otherness to secure benefits for the dominant group. Harry Glasbeek, a former professor and scholar at Osgoode Hall Law School in Toronto, referring to our political economic scheme, states

“Not only is this scheme about the private accumulation by the few at the expense of the many, it also is about the capacity to exercise power.”

William Blackstone, an 18th Century English judge and politician, refers to property rights as one of three “absolute” rights, which may only be controlled or diminished “by the laws of the land.” Law and decision-makers hold the capacity to change them. This is what allows the interests of opal miners to undermine the recognition of the Anangu people’s rights to land despite their spiritual relationship to it; the weight given to each group’s interests are affected by the composition of the law and decision-maker.

The selective distribution of property rights in this way underpins the law’s reinforcement of disparity. Glasbeek states that the law’s protection of property owners in a class-divided society means that “only a minority of people benefit from the sedulous protection of private ownership.” For example, cuts to welfare benefits, public education, Medicare and legal aid, require little justification other than broad economic concerns, whereas their maintenance or increase must be justified because welfare is seen as the use of “one set of people’s money to meet the needs of another group of people.” Even more troubling is the strict policing of welfare benefits: “welfare ‘cheats’ are twice as likely to go to jail than are tax defrauders, even though the latter cost the State far more than the former.”

Oppression of this nature is rarely uninherited. Rather than a cycle, the effects of the initial uneven distribution of resources – as well as freedoms and harms outside of property ownership – continue to increase the disadvantages of otherness and the privileges of ‘normality.’ However, as former Australian National University professor Margaret Thornton notes, the “individualised nature of our legal system is not capable of addressing classwide or systemic harms.” The carry-over effect of collective disadvantage often renders attempts to reduce it in an isolated and individual forum futile

Racial discrimination laws seek to either punish acts done by reason of a person’s race – rather than the barriers and exclusions a person of an ethnic minority faces leading up to the act – or to punish UNREASONABLE acts that have a disadvantaging effect. Either way, the most common cases involve victims of discrimination competing against the absolute rights to property ownership of an employer and, by extension, a business. When acting in a way that benefits business and strives to, on its face, only increase profit, efficiency, or align job candidates with company values, harmful acts become excusable on the basis of either two things. As Jennifer Nielsen, Associate Professor at Southern Cross University, notes, “more probable and innocent explanations” or a notion of blamelessness.

Ultimately, to expect law-makers to create, and decision-makers to enforce, law that fairly distributes resources and counters the effects of inherited disadvantage outside of or against their values is overly-optimistic. To fulfill its purpose, a democratic system needs to be representative, especially at the top of its hierarchy. However, remedying disadvantage requires diminishing privilege, which goes against the interests of the groups in power.