The Land is the Source of the Law

A Dialogic Encounter with Indigenous Jurisprudence

C.F. Black

• Editorial: Routledge-Cavendish
• Año: 2010
• ISBN:
  9781136919732
• Edición: 1
• Categoría: Law
• Categoría: Law Theory & Practice

The Land is the Source of Law brings an inter-jurisdictional dimension to the field of indigenous jurisprudence: comparing Indigenous legal regimes in New Zealand, the USA and Australia, it offers a 'dialogical encounter with an Indigenous jurisprudence' in which individuals are characterised by their rights and responsibilities into the Land.

Though a relatively "new" field, indigenous jurisprudence is the product of the oldest continuous legal system in the world. Utilising a range of texts – films, novels, poetry, as well as "law stories" CF Black blends legality and narrative in order to redefine jurisprudentia in indigenous terms. This re-definition gives shape to the jurisprudential framework of the book: a shape that is not just abstract, but physical and metaphysical; a shape that is circular and concentric at the same time. The outer circle is the cosmology, so that the human never forgets that they are inside a universe – a universe that has a law. This law is found in the second circle which, whilst resembling the ancient Greek law of physis is a law based on relationship. This is a relationship that orders the placing of the individual in the innermost circle, and which structures their rights and responsibilities into the land. The jurisprudential texts which inform the theoretical framework of this book bring to our attention the urgent message that the Djang (primordial energy) is out of balance, and that the rebalancing of that Djang is up to the individual through their lawful behaviour, a behaviour which patterns them back into land. Thus, The Land is the Source of the Law concludes not only with a diagnosis of the cause of climate change, but a prescription which offers an alternative legal approach to global health.

PART ONE
The Journey Begins

CHAPTER 1
My camp

‘I want you to remember only this one thing,’ said the Badger. ‘The stories people tell have a way of taking care of them. If stories come to you, care for them. And learn to give them anywhere they are needed … Sometimes a person needs a story more than food to stay alive.’

(Borrows 2007: 13)

The Yugumbeh language of my mother’s people¹ is a rich one. It stems from a land that was a virtual paradise, abundant in fish, birds and mammals. This abundance, however, did not lead to the erection of edifices to glorify some distant god or idol; rather, the Kombumerri people developed a rich intellectual and metaphysical world, aware of the galaxies as much as they were of the lifecycle of the smallest insect. Each entity was valued in its own right. My awareness of this heritage began with the repatriation of the remains of my grandmother’s ancestors, a common story among Indigenous peoples of the world. But this story of return is a story of a beginning rather than end: it was the beginning of my learning of the Law, which had been denied to me due to an unacknowledged invasion – an invasion sanitized by such words as discovery, settler society and colonization rather than an acknowledgement that many thousands of men, women and children had died to keep Australia ecologically balanced. I feel a deep sorrow that these fallen warriors/soldiers are still not recognized formally, even by our own people, but rather airbrushed into the background as a Sorry Day, largely as a consequence of the settler society turning Australia into a First World nation. While the remembrance of this brutality and lack of recognition of those who gave their lives to keep their lands sustainable for future generations is not the purpose of this book, it is hoped that such remembrance will result from the impact of the book on the reader.

Returning to my story, the more I ventured into the remembrance of the world of my ancestors – and especially the revitalization of our Yugumbeh language – the more the stories came to me. And so, as the Badger advised, it was the stories – the vehicle for intellectual and metaphysical knowledge encased in feelings – that would reveal to me the Indigenous jurisprudence: why the Land is the source of the Law.

And so I turn to my clan’s Yugumbeh language to assist me to elucidate the knowledge I carry in my genetic memory from those ancestors. I have chosen two words – two of my favourites, in fact – that will shape the jurisprudence in this book: talngai and gawarima. Talngai means light, which is used to enlighten in a metaphysical sense – what goes around the camp as knowledge. Gawarima describes a circular movement in which the information/story goes around a camp. In turn, it becomes a knowledge that is of a ritual nature and is therefore meant to heal through feeling the knowledge. This feeling of knowledge will be articulated through the talngai-gawarima jurisprudence actualized in this book.

The Talngai

I am legally patterned?

By telling a cosmological story from my ancestors’ country, I am demonstrating how I am patterned into the web of Law stories that have weaved my ancestors into reality. This is just one of the Law stories that weave me into the web of reality of my grandmother’s Kombumerri clan and my grandfather’s Munaljarlai clan. It comes from my maternal grandfather’s country of the Munaljarlai peoples of South-East Queensland, Australia. I have spent many years thinking about this story and revisiting while travelling around Aboriginal Australia. This account is my own rendering of the story, as each member of the clan will have his or her own account, for each telling passes on different elements that are important to the audience at the time of the telling. This telling emphasizes the breach of law of my own clan towards the hunting dogs belonging to a neighbouring clan, which, in turn, caused an abrupt geological change.

I was told once about these dogs, great hunting dogs they were. Not just ordinary dogs, hang around the camp types. No, these dogs were different – magic dog!

They say they even saw one of those dogs down on the Coast. A big black dog with red eyes. But I don’t know for sure. Only old grandfather Bilum Bilum would know that. He was a clever man, knew all those old stories, Law stories – those Law stories that weave us all together.

But those dogs they had magic because they could hunt anything they wanted. They made that hunter happy. They would catch an animal, bird or fish and bring it back to the hunter.

That hunter he was a big strong handsome fella. He came from down south … made his way up the coast and up to the mountains and there he stood looking out over what was the beautiful hilly country of the ol’ people.

That’s before they got silly and got wiped out. And this is how it happened. This is how all that land got flattened out. Yeah, it lost all its lovely hills and pretty trees and so just became hard, baked land. It happened all of a sudden. I’ve been told this happen in other places. Maybe everyone got silly at the same time, so they all got wiped out.

That big handsome hunter was standing there looking out and watching for honey bees – he loved that sugar bag. That’s another story how he found that sugar bag but I am not going to tell you that story. I am going to tell you this one about those dogs.

Those dogs saw a big guraman, that’s a kangaroo, they chased after the guraman and before you knew it they had disappeared from sight, so the hunter didn’t take much notice, he was just looking for those bees.

But what about those dogs, yeah, those dogs? They chased that guraman so fast that it had to pull up some of its magic and it hopped even faster and saw up ahead a lagoon, that was the Ilbogan lagoon in Bilum Bilum’s country. When that kangaroo saw that lagoon, he jumped straight into it and turned himself into a warrajum. That’s a water spirit, real special one. Makes that water, sweet water, special water.

But those dogs, what about those dogs, yeah those dogs. Well, they got mad at themselves for losing that kangaroo and so they didn’t see those lazy young fellas coming along. They were supposed to be hunting but you know young fellas, any chance to sit down and tell stories about girls instead of hunting. And sure enough they thought … hey, let’s catch those dogs then we don’t have to do all that hard work huntin’. So they set a trap and caught those dogs and took them back to their camp and ate them up. Real good they were. Stupid fellas eating magic dogs!

Well that hunter, he knew his dogs had been eaten, he knew something bad had happen to them. He felt it on his skin, cause it started moving real bad right near his elbow. So he went looking for those dogs and found them. He found all those bones those lazy fellas had left in the campfire. He took those bones and made a special place for them up in the mountains. You can see that special place for miles all around. I like looking up to that place where those two rocks poke up looking like dogs watching me down on the coast. Makes me feel special.

But what about those fellas that killed those dogs? Oh that was bad and that hunter made sure they were dead. Then he did something that killed all the people. He changed that land with his magic – he made it all change, just in one day. With his magic heflattened that place out real flat and made that land real hard and black. That’s now Munaljahlai country. That story reminds my Grandad’s mob to be careful and follow the Law, otherwise the land might suddenly change overnight. A wipeout can happen any time. It happened before and can happen again. That’s why we tell this story. To remind people, stay straight with the Law.

I am part of my family’s history

My mother taught me to ‘notice’ nature. In so doing she taught me the Law of the Land.

My mother, Beryl Yuke, was born of a Kombumerri woman, Edith Graham, and a Munaljarlai man, Stanley Yuke. She grew up in a household that cared for her maternal grandmother. Sadly, Grandmother Jenny Graham was one of only a few Kombumerri women to survive on the traditional homelands of the Kombumerri. This land was invaded and eventually covered in concrete: it became the tourist city of the Gold Coast.

However, even though my mother’s family witnessed the human-induced climate change of her traditional lands, and therefore had to adapt to the imposed culture, she was still able to pass on to me the habit of noticing nature. What I mean by this is that it was a subtle way, if not a subliminal intent, to pass on the importance of the Land as the Law, in a world bent on turning a paradise of natural environmental wealth into a poverty-stricken concrete mass of shining lights, high-rise apartments and artificial parks and waterways. My mother and her siblings had little chance of impacting on, or even comprehending, what was going on and what it would lead to. But then very few people are in a position to have such foresight, and still to this day are not in a position to see the impact of such madness. Perhaps, therefore, it might appear more sensible to consider that the planet is in a constant state of change and that the madness will also change over time and other priorities will supplant those of the present day. The knowledge to assist in that change comes from remembering stories from long ago, and that would appear to be my responsibility to my clans – to remember the stories.

The coming of a story

It is fascinating the way stories come to you, even though the Badger would appear to be telling us it is normal. There is a story I was told by a descendant of the farmer who cultivated the clan land of Bilum Bilum. In 1893, this farmer, rather than shooting Bilum Bilum or King Jackie Jackie and his clan, as was the practice of the day to acquire land, instead employed and handed down this story through the family over the centuries. King Jackie Jackie, as he was known to them, tried to warn the family of an impending flood. The farmer could see no evidence of this coming flood and therefore ignored Bilum Bilum’s warning. Disappointed, Bilum Bilum then took his clan to higher ground and waited for the flood. The flood indeed arrived, and became one of the worst floods on record in South-East Queensland.

This story of Bilum Bilum and the flood came to me while I was writing up my doctorate. Not long after hearing this story, I changed my disciplines and moved from humanities to law. Ever since, I have felt that Bilum Bilum and other ancestors have helped chart my course through academia and the eventual writing of this book, as well as the use of our Yugumbeh² language to name the jurisprudence that will be developed in this book.

Journey through academia

My journey through academia revealed to me an array of stories from Indigenous peoples across the world. I found these stories fascinating and essential in aiding my children to build their character over time. Little did I realize that the stories which came to me were actually shaping my mind into that of a jurisprude. Therefore, on meeting William MacNeil (2007) and Shaun McVeigh (2006) of the Griffith Law School, I began to see Western law in a different way. Rather than finding the stories of Western law and their jurisprudence daunting, I found them wanting – especially as I began to mix with critical legal theorists (McVeigh 2006) and listened to their insights into the wantings of their law. I began to realize that this law could not help Indigenous peoples; rather it was a hindrance to them. As I enjoyed daily discussions with my friend Shaun McVeigh about the finer points of Western jurisprudence, sat through my doctoral supervisory sessions with William MacNeil, and engaged in other light-hearted discussions of popular culture, I began to shape my own understanding of Australian Aboriginal jurisprudence based on my personal experience and the texts found in this book.

Having said that, I could not even have begun such a narrative of Law without the dialogic engagement I experienced with my fellow Kombumerri, Mary Graham, and the formation of my understanding of the Australian Aboriginal world-view by Lilla Watson, on whose clan land I was born. Undergirding all this, however, was the essential engagement with the land of my ancestors, for it was that act of walking the land of my ancestors that actualized and authenticated the knowledge I had acquired through those dialogic encounters.

These journeys have also been literal, and have taken me into other Indigenous worlds where I have met guiding lights such as Hinsha Waste Agli Win, Mr Moana Jackson, Stephen Augustine, Joan Ropiha, Ephraim Barney, Ron Day, Adrian and Henrietta Marrie, Ahasiw Maskegon-Iskwew, Mogobe Ramose, Christine Zuni Cruz, Lyndon Murphy and Dale Kerwin. Then there are my colleagues, who helped to guide me into a deeper understanding of the dominant culture: Thelma Jackson, Bradley Sherman, Ben Goldsmith, Tony Bennett, Michael Meadows, Tom Round, Russell Bomford, AJ Brown, Michelle Barker, Larry Crissman and Julia Howell. I’m deeply appreciative of the life-saving editing of Sue Jarvis and Teresa Chat-away. And I sincerely thank Richard Johnstone, director of the Socio-Legal Research Centre, Griffith Law School for the centre’s financial support.

Finally, my gratitude must be expressed to my mother and sister, Beverley, to whom the book is dedicated. I thank my children, Ashley, Maleah and Kapun, and my grandchildren for just being there. Just as much, I thank my friends Glenda Donovan, Colleen Wall, Rita Mazzocchi, Kine Camara, Jonathan Richards, Robin Trotter, Donna Weston, Carol Ballard, Marianne Mitchell and cousins Marjorie, Leona, Shirley and Robin. Thanks to my clans, Kombumerri and Munaljarlai, and the ‘living dead’ on all sides ...

Índice

• Discourses of Law
• Contents
• Foreword
• PART ONE The Journey Begins
• PART TWO Camps of the Senior Law Men
• PART THREE Travelling the Land
• PART FOUR Completing the Circle
• Notes
• Bibliography
• Index