Indigenous cultural rights violations and transitional justice in the settler colonial state

Abstract

This thesis argues that transitional justice can and should be reconceptualised to more adequately address indigenous cultural rights violations in settler colonial states. As the field of transitional justice has evolved and consolidated, it has been rightly critiqued for failing to confront the many issues facing post-conflict and divided societies. As originally conceived and implemented, the transitional justice project neglected the violent experiences of indigenous peoples, including large-scale violations of their cultural rights. Instead, conventional approaches privileged the redress of an exceedingly narrow set of recent, egregious acts of bodily harm, while overlooking other forms of wrongdoing in indigenous societies. Building off a body of critical scholarship pushing the field’s traditional boundaries, this thesis examines how and why indigenous cultural rights violations have remained at the outermost margins of transitional justice. It concludes that indigenous cultural rights constitute a significant blind spot in the field, one that has yet to be sufficiently interrogated on either a theoretical or practical level. This marginalisation stems from certain biases, assumptions and preoccupations engrained in the dominant model of transitional justice. In particular, conventional notions of what constitutes a ‘transition’, ‘justice’ and ‘violence’ have greatly restricted transitional justice from engaging with indigenous cultural rights violations. This thesis interrogates and rethinks these core concepts in ways that can potentially accommodate an increased engagement with indigenous cultural rights in settler colonial states. Drawing on settler colonial theory, it demonstrates that transitional justice can be reimagined to encompass indigenous cultural rights in the same manner as other rights violations without risking conceptual coherence. The inclusion of these violations in settler state transitional justice is justified on numerous accounts, including in its potential to strengthen the normative value of cultural rights, account for root causes of conflict, respond to indigenous priorities, and promote more effective reforms.