Aboriginal Peoples, Colonialism and International Law

Raw Law

Irene Watson

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317938361
• Edition: 1
• Topic: Histoire
• Subtopic: Histoire de l'Australie et de l'Océanie

This work is the first to assess the legality and impact of colonisation from the viewpoint of Aboriginal law, rather than from that of the dominant Western legal tradition. It begins by outlining the Aboriginal legal system as it is embedded in Aboriginal people's complex relationship with their ancestral lands. This is Raw Law: a natural system of obligations and benefits, flowing from an Aboriginal ontology. This book places Raw Law at the centre of an analysis of colonisation – thereby decentring the usual analytical tendency to privilege the dominant structures and concepts of Western law. From the perspective of Aboriginal law, colonisation was a violation of the code of political and social conduct embodied in Raw Law. Its effects were damaging. It forced Aboriginal peoples to violate their own principles of natural responsibility to self, community, country and future existence. But this book is not simply a work of mourning. Most profoundly, it is a celebration of the resilience of Aboriginal ways, and a call for these to be recognised as central in discussions of colonial and postcolonial legality.

Written by an experienced legal practitioner, scholar and political activist, AboriginalPeoples, Colonialism and International Law: Raw Law will be of interest to students and researchers of Indigenous Peoples Rights, International Law and Critical Legal Theory.

Aboriginal Peoples, Colonialism and International Law

This work is the first to assess the legality and impact of colonisation from the viewpoint of Aboriginal law, rather than from that of the dominant Western legal tradition. It begins by outlining the Aboriginal legal system as it is embedded in Aboriginal People's complex relationship with their ancestral lands. This is Raw Law: a natural system of obligations and benefits, flowing from an Aboriginal ontology. This book places Raw Law at the centre of an analysis of colonisation - thereby decentring the usual analytical tendency to privilege the dominant structures and concepts of Western law. From the perspective of Aboriginal law, colonisation was a violation of the code of political and social conduct embodied in Raw Law. Its effects were damaging. It forced Aboriginal Peoples to violate their own principles of natural responsibility to self, community, country and future existence. But this book is not simply a work of mourning. Most profoundly, it is a celebration of the resilience of Aboriginal ways, and a call for these to be recognised as central in discussions of colonial and postcolonial legality.

Written by an experienced legal practitioner, scholar and political activist, Aboriginal Peoples, Colonialism and International Law: Raw Law will be of interest to students and researchers of Indigenous Peoples' Rights, International Law and Critical Legal Theory.

Irene Watson is a Professor of Law at the University of South Australia and has published extensively on the impact of colonialism on Indigenous Peoples as subject/objects in international law. She is currently working on the Australian Research Council project 'Indigenous Knowledges: Law, Society and the State'.

Indigenous Peoples and the Law

Series editor

Dr Mark A. Harris, La Trobe University, Australia; Prof Denise Ferreira da Silva, Queen Mary, University of London, UK; Dr Claire Charters, University of Auckland, New Zealand; Dr Glen Coulthard, University of British Columbia, Canada

The colonial modalities that resulted in the pillaging of the 'New World' involved wholesale dispossession, genocidal violence and exploitation of their original inhabitants. It was not, however, until the latter part of the twentieth century that Indigenous peoples attained some degree of legal recognition. This book series focuses upon the manner in which Indigenous peoples' experiences of law have been transformed from an oppressive system of denying rights to a site of contestation, and the articulation of various forms of self-governance. Encouraging a range of theoretical, political and ethical perspectives on Indigenous peoples and the law, this book series aims to provide a comprehensive survey of the experience of Indigenous peoples and their changing relationship with national and international juridical frame works.

Titles in this series:

Aboriginal Peoples, Colonialism and International Law

Blood Minerals

Mark Harris

Indigeneity - Before and Beyond the Law

Kathleen Birrell

1 Introduction¹

DOI: 10.4324/9781315858999-1

Much of what is written about here began at a time immemorial and when law was raw. This work tells the story of 'Raw Law',² First Nations law, but also the coming of the colonial project, or, as we saw it, the muldarbi. The word 'muldarbi' translates loosely as 'demon spirit', although 'demon' is an idea more familiar to non-Aboriginal religions. The context here refers to Muldarbi, an ancestor spirit who failed to uphold the best interests of the collective in relation to the natural world. I have used the term 'muldarbi' to describe the phenomenon of colonialism and the impact it has had upon Indigenous Peoples' lives, laws and territories, worldwide. This work excavates the history of the foundation of colonial states and how it is foundational not only to the laws of those states, but to international law itself. But in the unearthing of that history a focus is brought back to the fact of the still-existing, living, breathing, Raw Law. I argue that the colonial project has emerged and grown from a denial of Raw Law, constructing instead First Nations Peoples as beings without law - uncivilised and without society. The colonial 'civilising' mission was to absorb the 'native' into the society of the colonising state. That mission still prevails, but it has failed itself.

Civilisation demanded the total absorption of First Nations Peoples, but this has not occurred and across the planet more than 300 million Indigenous people have survived the genocide of colonialism. Here, I critique accounts of Indigenous Peoples' survival and make an enquiry into the future possibilities of living beyond survival, to re-emerge as we were at the first sunrise, free peoples. Perhaps at this point the reader might think of closing the book on what could be considered a romanticised utopian dream of a First Nations past and future, but that would be to commit to a renewal of the same old histories. The colonial nations have closed the book a multitude of times, ignoring Aboriginal ontologies and with that have ignored the possibility of there being other ways of knowing the world beyond theirs - a hegemonic, positivist and raced view of the world, with the planet as a commodity. White male views prevail over all other ways of knowing³ and claim the centre from where all other ways of knowing are not only deemed marginal, but often not to exist at all.

Decentring the muldarbi

From the earliest sightings of the muldarbi, First Nations Peoples resisted the genocide and ecocide it threatened - and we continue to resist it. After more than 500 years, the colonial project is ongoing, and it is still striving to assimilate indigenous survivors into its societies. Here I review some of that long history of Aboriginal resistance, but limitations of time and space preclude a full review; moreover, there are many other authoritative contem porary histories of it. Instead, this work focuses on the resistance to the annihilation of the subjectivity of First Nations Peoples in international law. In illustrating that resistance, I have drawn from my Tanganekald and Meintangk First Nations identity. In writing myself into this work I have written in a voice that could be regarded as polemical, but this work is more than a polemic. I discuss this and the position of my voice further in Chapter 2.

Anthony Martin Fernando lived on the fringes of the colonised and settled lands of his ancestors in the vicinity of Sydney, New South Wales, in the 1860s.⁴ He was of the Dharug First Nation. He later left Australia and lived the remainder of his life in Europe and Britain, and we know from archival records that he waged a campaign against the violence of colonialism throughout the rest of his life. Fernando travelled to Switzerland in 1921. On 30 June of that year he published a letter in the Berne press in which he called upon the international community to support self-governance by Indigenous Peoples of Indigenous lands.⁵

Since then, that call has been made many times by many other people, but in spite of its urgency and importance, the calls have almost always been ignored by the international community. In the 1970s, the United Nations was approached by members of the American Indian Movement from Turtle Island,⁶ requesting that the situation of First Nations Peoples and the genocide, which was a fact of their lives, be placed on the UN agenda. At the same time but in another place - the 'Indigenous Australian' context of the 1970s - 'Aborigines' were coming out from under the oppressive regimes of the Aborigines Acts of the various Australian states. The Aboriginal Tent Embassy had been created in Canberra in 1972, and the struggle for land rights and self-determination was proclaimed by a growing number of First Nations Peoples across Australia. In response to those demands, the Australian states came up with various laws and policies supporting 'Aboriginal recognition'. However, recognition by the coloniser of the colonised inevitably reinstates colonial law and remains holding the colonised captive.⁷ The illusion of recognition works its power so as to conceal the ongoing character and intent of the colonial project - that is, to maintain hegemony and do nothing about returning balance and power to the colonised. First Nations Peoples' experience of colonial recognition is the recognition of our sovereignty only when that recognition enables the 'native' to transfer our sovereignty, our territories and natural resources. Recognition only falls to First Nations at the moment we become dispossessed, by way of transferring our sovereignty to the colonising powers.⁸ The muldarbi only allows for the recognition of 'cultural' differences where there is no threat to its hegemony, the hegemony of the state. And where Indigenous Peoples' relations to the natural world intervene and are in the way of the development agenda of a state or corporation, the idea of 'cultural recognition' is shrunk back to whatever fits with and is accommodated by the proposed development. In denying Indigenous relations to land, the state denies the authenticity of these relationships. White experts and anthropologists are engaged by the state to 'test' native authenticity; I discuss this further in Chapters 5 and 6. In the colonial purview, recognition can only become the recognition of colonial power. The First Nations context is different. Power to damage or kill ruwe and or people is against our law and is a muldarbi translation of a First Nations' idea of recognition. I discuss this further in Chapter 7.

The Australian Commonwealth and its constituent states all provided their own interpretations and translations of the meaning of 'land rights' and 'self-determination'. The states translated 'land rights' in the context of the natural resources boom starting at that time and 'self-determination' as being concerned with transforming Aboriginal individuals as replacements for the colonial mission managers of the past. State policy was (and remains) all about co-opting Indigenous Peoples and individuals into the colonial project. The states took an Indigenous bid for freedom in the form of land rights and self-determination and subverted it back into the process of assimilating the 'native' into the colonial project, or business as usual. This was manifested in the establishment of the Aboriginal and Torres Strait Islander Commission (ATSIC). With ATSIC, 'self-determination' became the management of colonialist policy by indigenous people for Indigenous Peoples. We also saw the creation of 'native title' by way of the Native Title Act 1993 (Cth).⁹ Native title was a superficial recognition of Aboriginal relations to land in one move and the extinguishment of that recognition in the next. Both ATSIC and native title were 'gammon'¹⁰ acts of recognition, and these gammon actions continue, despite the tenacity of Indigenous Peoples' resistance.

The states remain at the helm, holding power by force - but not by law. Power continues to be wielded by all the colonial states who work together in the translation and interpretation of Indigenous Peoples' rights; they ensure that we remain objects in international law, subjugated to their power. In Chapter 3, Arabunna elder Kevin Buzzacott gave evidence before Justice Crispin in the genocide case, Nulyarimma,¹¹ in which the tension between the state and First Nations' legal and political systems was highlighted. In that conversation Buzzacott clearly enunciated his obligations to Arabunna law and country, which were to ensure they remain intact and not absorbed or assimilated into a white way of knowing the world.

As part of the resistance to the demise of First Nations projected by the colonial powers, a global movement emerged in the 1970s demanding change. Calls for change were interpreted by the UN and its institutions as an opening for the development of international standards to protect Indigenous Peoples' rights in law and life. This culminated in the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).¹² However, the UNDRIP was not the outcome First Nations' advocates had intended when in the 1970s they first engaged with the UN.¹³ What began as a positive attempt to shift the balances of power from their centres in the colonial states ended with no shift, nor any possibility of a shift in power occurring. While Article 3 in the UNDRIP recognises Indigenous Peoples' right to self-determination, the body of UNDRIP limits self-determination to that which the state concerned will allow or enable. Article 3 is 'gammon' self-determination and UNDRIP has ended up no more than a pragmatic and empty gesture, which has altered nothing in the world of First Nations' and colonial state relations. As an...