Gununa peacemaking
| Author | Paul Memmott,Morgan Brigg,Berry Zondag,Philip Venables |
| DOI | 10.1177/0964663917719955 |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2018, Vol. 27(3) 345–366
Gununa peacemaking:
ª The Author(s) 2017
Reprints and permission:
Informalism, cultural
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DOI: 10.1177/0964663917719955
difference and
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contemporary Indigenous
conflict management
Morgan Brigg, Paul Memmott
The University of Queensland, Australia
Philip Venables
Formerly Queensland Government, Australia
Berry Zondag
Junkuri Laka Wellesley Islands Aboriginal Law, Justice and Governance
Association Inc., Australia
Abstract
Informal conflict management implicitly claims to value cultural difference and to be able
to mediate relations between cultural minorities and states. This article considers this
claim in challenging circumstances borne of settler-colonialism by examining the cultural
politics of the establishment of a conflict resolution programme in an Australian
Aboriginal community. In addition to settler-colonial maligning of Aboriginal capacities to
manage conflict, the Gununa community has in recent decades faced the severe
attenuation of customary processes and escalating uncontrolled violence. Nonetheless,
the Mornington Island Restorative Justice Project involved a spontaneous appropriation
of mediation as a customary initiative and an accompanying implicit negotiation between
the customary sociolegal order of Mornington Islanders and that of the liberal settler-
state. Analysis of these circumstances and relations leads us to argue that informalism
can support cultural difference and mediate relations with the state, although it cannot
be relied upon to transform the accompanying asymmetric relationship. Nonetheless,
Corresponding author:
Morgan Brigg, School of Political Science and International Studies, The University of Queensland, Queensland
4072, Australia.
Email: m.brigg@uq.edu.au
346
Social & Legal Studies 27(3)
informalism may sustain and contribute to the possibilities for transformative change by
improving delivery of justice services and through recognition of Indigenous capacities
and approaches to sociopolitical order.
Keywords
Aboriginal Australia, conflict, customary law, informalism, legal pluralism, mediation,
Mornington Island
Introduction
Community-derived means of resolving disputes, most commonly taking the form of
processes such as mediation and conciliation, have burgeoned for over four decades as
part of justice reform initiatives which envision the greater involvement of everyday
people in addressing their conflicts. This turn towards ‘informalism’ draws upon and
supports increased recognition of cultural difference. The conflict processing mechan-
isms of Indigenous peoples have at times been a source of inspiration for informalism
(see, e.g. Danzig 1973: especially 42–43), and informal processes have been promoted as
aligned with the decision-making methods of diverse cultures (Brigg 2015: 190). Inform-
alism thus makes two implicit claims in relation to cultural difference. First, culturally
diverse understandings of conflict resolution are a valuable resource for managing con-
flict. This claim resonates with wider informalism advocacy and practice that frequently
sets local community and culture against formal law and abstract institutional frame-
works (see Auerbach 1983). Second, because informal conflict management programmes
and processes are frequently administered or overseen by state agencies or legislation,
informalism implicitly claims to be able to aid the delivery of justice services while
addressing the often-troubled relationships between states and cultural minorities living
within their borders. Informalism claims, then, to be able to support cultural difference
while simultaneously mediating relations between cultural minorities and states.
Early critical academic scholarship about informal conflict management processes
reflected the distinction between culture and law but was not kind to the advocates of
informalism. Critics argued that advocates of mediation and related processes were
falsely attached to ‘harmony models’ of social life (Nader 1991) and ‘populist . . .
visions of community, humanity and tradition’ (Fitzpatrick 1988: 179). Others argued
that informalism was a mechanism for extending state control (see Abel 1982) or, more
subtly following Foucault, of governing individuals (Pavlich, 1996a; 1996b) and cul-
tural difference (Brigg, 2003) by institutionalizing approaches to conflict that aligned
with the goals of the state. More recent scholarship has moved beyond setting com-
munity freedom against state power (Brigg 2007; van Krieken 2001), and, for instance,
to the view that practices such as mediation are part of a ‘justice-complex’ which is
simultaneously formal and informal and contains the potential for both domination and
transformation (Woolford and Ratner 2008). This stance better enables analysis of the
claim that informalism can simultaneously support cultural difference and mediate
relations with the state.
Brigg et al.
347
Meanwhile, the idea of informalism as a positive way of responding to cultural
difference has persisted amid ongoing assertion of cultural rights. Governments con-
tinue to support informalism, albeit not with the fervour of the reform agenda of
previous decades, and communities continue to embrace informal conflict manage-
ment processes. At the macro level, the United Nations Declaration of the Rights of
Indigenous Peoples (UNDRIP) (United Nations 2007) indicates both support and the
need for the further development of responsiveness to cultural claims. Article 5 of the
Declaration, for instance, states that ‘Indigenous peoples have the right to maintain and
strengthen their distinct political, legal, economic, social and cultural institutions . . . ’.
Efforts to recognize cultural difference through informal justice mechanisms, though,
often take place in hostile and challenging circumstances borne of colonialism and
ongoing state domination of the lives of Indigenous peoples. In these difficult circum-
stances, Indigenous peoples are frequently maligned as not possessing the necessary
institutions and capacities to manage conflicts, especially those associated with con-
temporary existence. This brings into question the viability and basic orientations of
informalism as a possible and valuable response to Indigenous cultural difference,
further sharpening the need to consider whether informalism can both support cultural
difference and mediate relations with the state.
This article examines the cultural politics of the establishment of a conflict resolution
programme, the Mornington Island Restorative Justice Program (MIRJP) in an Austra-
lian Aboriginal community (Gununa, Mornington Island, Queensland) to consider the
prospects of informalism as a means for recognizing cultural difference and mediating
Indigenous relations with the state. (Please note that although ‘Restorative Justice’ was
the terminology used by the Australian Government department that set initial events in
train leading to the MIRJP, community consultations saw the project evolve into a
mediation programme without an accompanying name change. We shall thus refer to
it as a ‘mediation project’ in this article.) The article first provides an overview of the
Australian and Mornington Island contexts. It then engages a question at the heart of
informalism’s intuition about the value of cultural difference which has particular
salience amidst settler-colonial debates that are hostile to Aboriginal cultural capaci-
ties: Did Aboriginal people possess forms of sociopolitical order and conflict process-
ing that can be recognized and valued today? After briefly describing the introduction
of the MIRJP we document how, despite very difficult circumstances including the
severe attenuation of customary processes and escalating uncontrolled violence, the
establishment of the MIRJP involved a spontaneous appropriation of mediation as a
customary initiative and an accompanying implicit negotiation between the customary
sociolegal order of Mornington Islanders and that of the liberal settler-state. The final
section argues that the case of the MIRJP lends support to the claim that informalism
can simultaneously support cultural difference and mediate relations with the state but
that informalism cannot be relied upon to transform asymmetric relationships between
Indigenous peoples and the state. Nonetheless, the conclusion suggests that informal-
ism can maintain and contribute to the possibilities for transformative change, includ-
ing within the intersecting domains of informal–formal justice complexes, by
contributing to improved delivery of justice services and recognizing Indigenous
sociopolitical order and capacities.
348
Social & Legal Studies 27(3)
The methodology for the research underpinning this article reflects our roles as
occasional consultants, advisors, or staff with the MIRJP. Brigg and Memmott, both
university employees, periodically conducted informal discussions with Project Manager
Venables. These conversations informed background analysis, Venables’ data gathering
(including interviews, informal discussions on Mornington Island, and taking notes of
meetings as part of his role), and catalyzed reflexive data analysis by Venables. Brigg
also served on a steering committee which operated in the early stages of the project,
provided short-term training inputs for the project and pro bono conflict resolution
advice. Memmott also provided pro bono anthropological advice to the project, based
on long-term fieldwork...
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