SURVIVAL AGAINST THE COLONIAL STATE
Our voices were once heard in light of the law. The law transcends all things, guiding us in the tradition of living a good life, that is, a life that is sustainable and one which enables our grand-children yet to be born to also experience good life on earth.
The law is who we are, we are also the law. We carry it in our lives. The law is everywhere, we breathe it, we eat it, we sing it, we live it. And it is, as explained by George Tinamin: Ngangatja apu wiya, ngayuku tjamu. This is not a rock, it is my grandfather. This is a place where the dreaming comes up, right up from inside the ground.
We believe that we are descended from beings of the dreaming. They are called ngaitji or totems. And these ngaitji represent our spiritual attachment to our ancestral beings. Our ngaitji teaches us about the unity we share with all things in the natural world. Cooma el ngruwar, ngruwar el cooma, illa booka mer ley urrie urrie. One is all, all is one, the soul will not die.
Our law comes from Kaldowinyeri - a very long time ago. And it will always be. It will not change, regardless of what happens to the planet or humanity. The law will always be what it is, the law. And these are our teachings, these same teachings have gone on since kaldowinyeri.
To those who say as they did when they planted the theory of terra nullius upon our lands that we were peoples without law, and to those who say womens law-business is a fabrication, I say: you are ignorant, and have much to learn. Historically the coloniser did not recognise the laws of indigenous peoples, and this continuing terra nullius is still evidenced by the refusal of the colonial Australian governments to respect and recognise our laws.
There is a considerable volume of aboriginal law-stories and knowledge that has made its way into the printed word, that speaks of law. For that is what it is. The following tells of the first sun-rising. Sun When the world was new, the Sun woman made a little baby girl. She was not like other babies, because all her body was shining with light. As she grew older, away in the west in the land beneath the ground, she was still the same. When some other women tried to touch her, her body burned their fingers like fire. Why does your daughter carry fire like this? they asked the Sun woman. We are the Sun Dreaming, both of us, the girls mother told them. When all the land is dark, my daughter will bring you light. But I, my-self, cant come up above the ground. Im too strong. If I came up and looked at you all, up there, I would burn you to ashes. Still the girl lived with her mother. At first there was darkness every-where, but when the girl came up into the sky she lit up all the country. Its true, people said, looking up at her. She brings light to us all. They were happy to see her there above them. Everyday, she does just the same. When the first birds start to talk, she comes up into the sky and stands there alone to give us light. Then she begins to think of her mother, lonely and waiting for her, and she moves down in the west on her way home. Down she goes, under the ground, to be with her mother, and darkness covers the land, They sleep there together until it is time for the birds to waken again. Then the sun woman sends her back to us. You must go now, she says. go and light all the men and women and children, all our relatives up there. Its all right for you to go, but my light is too strong. If I came, I would kill them. So she takes her daughter on her shoulders, and they hurry across to the east. There she lifts her daughter up until she touches the sky. Its all right now, mother, says the girl. Im here. You go back and wait for me. So away she goes under the ground, back to the west. The power that the ignorant (colonists) have to make our laws terra nullius has been experienced and we now know the impact and effect of that power. Our laws embrace a love of the land, the law of caring and sharing, the laws of creation and sustainability. More than at any other time before we need the law in our life again.
The following law-story, Waargle told by the Bibulmun Peoples tells of a past time, a time that could be today.
A long, long time ago, after thousands of years in this land, the Aborigines of the numerous associated tribes were gradually learning to live in harmony, not only with each other, but with the animals, birds, and the entire environment.
Between the great Bibulmun people and all other tribes in their region, there were many who chose to ignore the sacred spirit teachings of the great and powerful Bibulmun elders. As the years passed the elders became more and more concerned about the younger peoples reluctance to follow the laws and customs which had enabled the tribes to survive and live in harmony for thousands of years.
The young ones openly showed disrespect
for the elders and their age-old customs and laws. They abused the old
ones and ignored their warnings that the Korrndon Marma Man would surely
punish them all. Even the strict rules of marriage were broken.
By this time many of the elders had also forsaken the laws too. But there were seven people, four warriors and three women, who would not accept theway in which the once proud and powerful Bibulmun people were sadly destroying themselves.
Buerrna (one of the seven) called the three other warriors and the three women to his side and said, Last night I dreamed I was riding on the back of Waargle the snake who is the Korrndon Marma Man, As far as I could see there was only water, and as Waargle glided along, floating on the surface of the water were men, women, and children everywhere and they were calling out Save me! Save me! Great Korrndon Marma Man, but as the people came closer, and tried to climb on to Waargles back he brushed them into swirling water. Suddenly I noticed that you were all riding on Waargles back with me and we were carried for many days and nights until we reached a sacred rock which Waargle began to circle, and while he did this the water began to go down until the rock was above the water level and he stopped to allow us to stand on the solid rock. He then said,..Know your totemic symbol shall always resemble me, the Waargle. Remember the laws..keep this rock sacred, because I will always be here. The sacred rock is called Boyagin Rock and it is believed the Korrndon Marma Man still sleeps undisturbed inside, in the form of the Waargle, the sacred snake.
The Waargle speaks of the capacity of the law to transcend human behaviour, its very essence is that it is a spiritual law. The rock is sacred, it is the Waargle, the Waargle is the law. The story tells the people how to live. However there was a breach of marriage and incest laws, which results in a breakdown of the Peoples and their ability to live in harmony with all things. And once the people have broken with the law the survival of humanity is threatened.
Another law-story Gurukmun the Frog, again occurred Kaldowinyeri a long time ago.
A long time ago, way back in the Dreamtime, there lived a big, big frog, called Gurukmun. He was easily the biggest frog in the whole land, so big that, as he hopped, each hop would make the earth shake. Gurukmun didnt live in a river or creek because there were none big enough, and besides, he liked to hop about on dry land. One very hot day, all the animals were gathered at a waterhole. They were sitting around, chatting about the hot day while the little ones were playing in the water. Then they heard Gurukmuns boolumph! boolumph! Boolumph! as he hopped towards the waterhole.
The animals watched as he plopped down beside the waterhole and started to drink. And he drank, and he drank, and he drank, until all the water was gone! Where the beautiful waterhole had been, there was nothing but a big muddy patch!
Then Gurukmun hopped away to look for another waterhole. One waterhole was not enough for a huge Frog like Gurukmun. And whats more, he was feeling particularly thirsty. He hopped until he came to a river, and he began to drink. Soon, all the water in the river was gone!
Gurukmun rubbed his big green belly. He was still very thirsty, so he hopped down to the ocean, and began to drink.
He drank, and he drank, and he drank, slurping up the ocean, and as he drank, his belly grew bigger and bigger and bigger. When all the water in the ocean was gone, Gurukmun was still thirsty!
The animals began to worry. Gurukmun was drinking all their water - soon there would be none left. They watched as Gurukmun went from river to lake to waterhole, drinking each one dry. And he didnt stop until all the water in the whole world was gone. All inside his enormous green belly!
Then Gurukmun, with all the water in the whole land inside him, hopped slowly up on to the top of an enormous mountain. And there he sat, looking out over the dry brown land.
The other animals became very worried. Now they had nothing to drink, and there was no water for the trees and the grass - Gurukmun had taken it all. What were they to do?
The Emu and the Goanna went to see wise old Wombat. Wombat, there is no water. Gurukmun has it all, and if we dont get it back, then we will all die.
The Wombat called a meeting. All the animals gathered at the bottom of Gurukmuns mountain. The kookaburra flew up to Gurukmun to ask if he would give some of the water back.
But Gurukmun just sat there, big and fat and green. He had all the water, and he wasnt going to part with any of it. How were they going to get the water back? The Possum suggested frightening him. If Gurukmun had a fright, then he might cough some of the water out. But how do you frighten the biggest Frog in all the world? The Goanna thought that if someone could tickle Gurukmuns nose, then he might sneeze some of the water out. But how were they to reach his nose? It was such a long way up, and anyway, he probably wasnt ticklish.
Then the wise old Wombat had an idea. What if we make him laugh? If Gurukmun laughed, then surely all the water would come gushing out. The animals thought about it. It was the best idea, and if they didnt soon do something, they would all shrivel up and die. So it was decided. They would make him laugh.
(Following different animals attempts to make the frog laugh finally,). It was old Nabunum, the Eel. He wriggled up to the front of the meeting. The magpies started to giggle. He looked so funny, out on dry land. Nabunum glared at them. What do you think is so funny? If someone took away the trees, you wouldnt think it was funny. Ill show you how to make this Frog laugh. And hell laugh to much, that all the water will come out. So Nabunum wriggled up to Gurukmun. And he began to dance. He did look silly, an old Eel, wriggling about, trying to dance like the Brolga.
Gurukmun looked down at the old Eel. Nabunum was writhing and thrashing, wriggling and crawling, curling and uncurling, twisting in and out and all around himself. Then suddenly he stopped. He was stuck.
The animals burst out laughing. The Wombat rolled about in the dust. Old Nabunum, all tied up. It was the funniest thing he had ever seen.
Then the animals heard it. A huge gurgling noise. They looked up, and it was Gurukmun. An enormous grin stretched across his big green face. Nabunum struggled to untie himself, and as he struggled, Gurukmun began to laugh in earnest. Great big laughs. And as he laughed, the water started to come from out of his enormous mouth.
And Gurukmun laughed so much, that all the water flowed back to fill the oceans and lakes, the rivers and billabongs, the lagoons and the waterholes.
And Gurukmun, the greedy Frog, hopped away and has never been seen again.
While the story of Gurukmun is Kaldowinyeri, it has a relevance to events that are occurring throughout the world today. In the law of Gurukmun the behaviour of Gurukmun is like that of Western Mining Corporation, in their development of uranium and other mineral deposits at Roxby Downs. This mine is in a very fragile area of the state of South Australia, one of the driest regions of the world. The underground artesian water supplies have been threatened by the mines vast thirst for water; the water is used to process the minerals and then it is discarded, poisoned into tailings dams. These dams too pose a threat with the possibility of leakages back into the underground water supplies. A disaster that would threaten the survival of future generations to come. How did the community of animals deal with the greed of Gurukmun? They made him laugh. It is a strategy worth considering, because as the animals found there was no other means available to them that would bring the frog to release the water.
Indigenous Peoples law-ways are similar throughout Australia and the world. We share a belief in the creation, a time in which the law itself was created. The law is from a long time ago - Kaldowinyeri, and was given to the peoples of the land to carry as custodians of both law and land, by our ancestral beings - creative spirits.
The Indigenous relationship to law and land is different from other relationships, other being the relationship of states to land. Haida elder Lavina White in her testimony before the First Nations International Court of Justice describes the law of her Peoples: If somebody came onto your lands without your consent, then you had a right to assert your law and what you call law. Your language (english) is very difficult for me to speak about some things. We view it as a way of life. Christianity is not the way we view it. Spirituality is the way we view things. And even the most minute thing, as the Haida children are told at their level, you cannot destroy even the most minute thing in nature, because everything has its purpose. And so when the white man came, our environment had been very well cared for. We had no destruction. And yet we have been there since the beginning of time. Our history tells us weve been there since the beginning of time. They will try and tell you that we came across a land bridge because it suits their purposes. We know our history. We dont have to be told. We know that the Creator placed us where we are.
Our indigenous law-ways are still with us, but they are now subverted by the Australian state. We are like the seven people of the Waargle awaiting the time for the Waargle to rise. We are the animals of Gurukmuns time struggling to bring water to the land. We are peoples rising from the ashes of the holocaust: our laws violated, our territories plundered, and our peoples still resisting colonisation, as we face the state.
We face a state that shares a membership at the United Nations with others who likewise have created their identities upon the spoils of colonialism. And they act together as though their act of togetherness somehow legitimises the conspiracy and reluctance to end colonialism and genocide.
We the indigenous people, now reduced by policies and practises of genocide to a minority in terms of population, say to them: we are the owners of the land, we are still here. Our laws cannot be extinguished. We are the carriers of the law. You the coloniser have rules and regulations, and it is those rules and regulations that we question. It is our belief that those rules and regulations are without any lawful foundation.
We ask the State: by what lawful process have you come into being? And its responding arguments known to the state as international law are referred to reverently, as though this international law will conjure a magic answer that dissolves lawlessness and blame for 500 years of evil that has been wreaked upon indigenous peoples. It is also a thought that is shared by contemporary colonising powers that this international law will resolve without cost to the colonising power, the demands by indigenous peoples to our inherent right to self-determination; when we say: the law is still the law of the land; as indigenous law always was and always will be.
The reverence for international law works its magic by espousing its conclusiveness. A full stop to further questions. But from where I am looking at international law, I find it is revealing evidence of Eurocentricity gone mad. One example is the theory of emptiness: terra nullius.
The doctrine of terra nullius was applied to the territories of hundreds of Indigenous Peoples, to a land we now know of as Australia. However the concept today is criticised and has become controversial, embarrassing, and an indictment on the treatment of indigenous peoples. Our territories and inherent rights to self-determination have been plundered and displaced in the name of terra nullius.
Blaut criticises terra nullius as follows: The idea of a land being empty is connected with the idea of Europe as progressive and non-Europe as being backward. This eurocentric perception of "emptiness" of ideas, "proper" spiritual values and basic cultural institutions and people, allowed Europeans to believe that a space existed for their invasion. The European invasion as perceived, violated no political sovereignty since wanderers made no claim to territory. Indigenous peoples were viewed as not understanding private property; that is, the region was empty of property rights and claims, empty of intellectual ideas, spirituality and an absence of 'rationality'.
The idea of emptiness is evidence of the eurocentric and racist foundations of international law. International law is imbued with the presence of eurocentric beliefs of the past and continuing superiority of Europeans. It was European science which promoted the idea that Europeans were not born of the same race as non-Europeans. Science was used to justify the view that indigenous peoples were genetically inferior and as a result were incapable of asserting self-determination. This scientific myth justified the colonisation of our territories, our minds and our bodies.
Scientific myths of European superiority were shaped by the economic interests derived from the plundering of indigenous peoples territories. A situation which continues today. And while I use the term colonialism to explain plunder, rape of land, women and children, dispossession of land and sovereignty, in the modern world context it translates as imperialism and the plunder of our territories and natural resources by major trans-national corporations. It is the plunder of indigenous peoples territories and natural resources that provides an economic basis from which colonial and neo-colonial powers continue to hold power. And because of their vested greedy interests, these powers continue to assert their jurisdiction over indigenous peoples in the shaping of contemporary legal theories.
The idea of emptiness is also evidence of schizophrenia in law. Schizophrenia creates a false sense of reality. Terra nullius created a reality that was not true: Australia empty of sovereign peoples, awaiting European occupation. And now more than two hundred years later the schizophrenia continues. New myths are evolving: terra nullius is dead. The plunder is over. A right to negotiate. They are lies. The sickness still spreads across the land. That is terra nullius has a life still today. As it had a purpose for those who invented it before it continues to have a purpose for those who re-invent it today.
Whats the diagnosis and is there a cure? Many people might argue that terra nullius was put to rest by the High Court in the Native Title decision . This decision was celebrated as being an initiative in reconciliation, when it overturned the application of terra nullius to Australias law of real property. However the High Court did not fully reject the terra nullius doctrine. This was avoided through their failure to question the legitimacy of the British occupation of Australia. The High Court decided that the invasion and the British Crowns acquisition of sovereignty over the Australian colony was an act of state that could not be challenged in any Australian court. In reaching this conclusion the High Court sanctioned colonialism, dispossession and disempowerment of Nungas, as a legitimate act of state.
Indigenous barrister Paul Coe points out the comparative thinking behind the High Court and the state of Germany during the tyranny rule of Hitler. The same justification - an act of state, was used by the Nazis in the attempted genocide of the Jewish peoples. The High Court has merely closeted terra nullius, and to replace it, the court has taken off the hanger the act of state doctrine. The legal theory of terra nullius has remained intact. The real death of terra nullius would have dismantled the Australian legal system.
The impact of terra nullius surrounds us: violations of our law, ecological destruction of our lands and waters, dispossession from our territories and the colonisation of our being. Terra nullius has not stopped; the violations of our law continue, the ecological destruction of the earth our mother continues with a vengeance, we are still struggling to return to the land, and the assimilator-integrator model is still being forced upon us. This is terra nullius in its practical and continuing application.
There is no death of terra nullius. Its life is my struggle against extinguishment: the end of struggle against extinguishment would be the death of terra nullius.
The celebration of the death of terra nullius is a farce: a collective act of schizophrenia, a false-hood, a conspiratorial lie, which has lulled the Australian psyche into a fantasy myth that there had been in the Native Title decision an act of recognition of indigenous peoples rights. Let us not forget whose interests the courts of a colonial creation were developed to serve. Joyce Green reminds us with clarity when writing on the situation in Canada:
The outcome in Delgamuukw and other cases in which land title is contested between indigenous and colonial authorities is preordained by the fact that the law, and the courts that interpret and administer such law, are colonial emanations and constructs. They are rules of the ruler, interpreted by the ruler through the lens of the selective, racist history. They construct the settlement thesis premised on assumptions that colonizing populations were inherently superior to the indigenous as measured on a quasi-evolutionary linear progression of human development, and that the more advanced society is entitled to claim political supremacy which benefits the primitive societies with accelerated development.
The difference in how I - we view law is big. Aboriginal law sustained life before and now and for life still coming. The law that is imposed by the state does not promote sustainability for all life forms today or in the future. The difference is Aboriginal law ensured lifes continuity. The law of the state doesnt. What water will the people and all living things drink when it is toxic from radiation and pollution?
The Land is my nurturer, she is my Mother.
The Australian state has developed rules of law, the law of property to take one example, to institutionalise ownership and control over land. Ownership is measured by capital. In contrast Aboriginal laws acknowledge ownership in terms of ancestral and spiritual connections to the land. This form of ownership carries with it custodial obligations in accordance with the law. At the ceremony to celebrate the Aboriginal Tent Embassys placement onto the register of the National Estate on the 9th April 1995, Dennis Walker eloquently spoke:
The real land and law business has not been done. And what I would like to point out to you is that in terms of our land and our law it needs to be understood, as my mother said, we are custodians of this land. And when people say oh we lost this land or we lost that land, we didnt lose it anywhere. The land is still here and we still have got the responsibility of being custodians of that land. The problem is that we havent been given the power in the non-Aboriginal legal system to fulfil that custodial right. Until our Elders in Council decide on these matters through their customary laws and until that consent, which Captain Cook was supposed to get, is properly given, then we still live under bad laws.
The bad laws Dennis talks of are laws which violate our laws our lands and our Peoples. The result of these violations will inevitably be felt by all Peoples, as we breath the same air. The krinkri construction of nunga identity and culture For more than two hundred years the colonial state by way of force has imposed its own idea of what our identity is upon us. At first we did not exist, and when we did exist we were other than our selves. The coloniser called those who dressed in clothing and behaved, British subjects. But without the same rights of other subjects. And later, before a populus that called itself Australians they called us that too. Colonial-schizophrenia ran amok in the construction of our identity. They also call us Aborigines, the Aborigines and our Aborigines.
And all the time they were telling us who we were, our grandfathers and grandmothers were telling us we were not that. So they separated us from our old people and their ancient law-ways. And through torture and terror, they colonised the peoples minds and many of the people let go of, or forgot who they were. But there are those who remember and continue to remind us of our teachings and ancient law-ways.
In our survival of terror, torture and the imposition of a colonial mind set, there has always been indigenous resistance. The recent dispute over the building of a bridge to Kumarangk, illustrated the power of the state to intrude into the discussion and determination of our cultural and spiritual identity. But the dispute also illustrated the power of indigenous peoples to continue to echo the voices of the ancestors on law and culture. The women of Kumarangk said we are still the carriers of womens-law business, and we still honour that after 200 years of colonialism. And the state said: you are lying. The Royal Commission into Hindmarsh Island decided womens-law business was fabricated for the purpose of stopping the building of the bridge. In her report to the state of South Australia, Iris Stevens reported as follows;
Unless an analogy of the bridge as a form of contraception is accepted, Dr. Fergies attempt to comprehend and translate what she was told by Doreen Kartinyeri, with comments from a few others, does not explain why the cosmos and the Ngarrindjeri women would be rendered sterile by the construction of the bridge. The beliefs said to constitute the womens business and Dr. Fergies elaboration of it, that is the cultural significance of the area according to Ngarrindjeri tradition and the threat of injury or desecration said to be posed by the construction of the bridge, are not supported by any form of logic, or by what was already known of Ngarrindjeri culture.
Commissioner Iris Stevens reaches this conclusion based upon logic and what was known of Ngarrindjeri culture. But whose knowledge and whose logic? The women who asserted womens law-business never gave evidence before her Commission, because they did not acknowledge the Commission as having jurisdiction to hear their evidence of womens law-business.
The findings of the Royal Commission while
striking a vicious blow at the credibility of indigenous law, culture and
spirituality, was also a good illustration of the continuing presence of
colonialism in Australia.
The women of Kumarangk refused to give evidence to the Royal Commission, and for those that did give evidence had difficulty conveying the ideas of creation, secret-sacredness and law. The manner in which the Commission's Counsel assisting David Smith took the evidence from George Trevorrow shows what a total waste of our time it is to even attempt to explain these ideas in a forum that is disrespectful and ignorant of Indigenous Peoples' law and culture. Note the following examination by David Smith:
Q. How did you know that by connecting the island to the mainland by a bridge, was somehow offensive to its significance as a place of women's business.
A. I think it is just common sense.
Q. But you didn't know anything about the content of the women's business.
A. No I still don't know any of the content.
Q. It may be that a bridge from the island to the mainland would have no affect on.
A. It is still going through our waters.
Q. The importance of the waters is something to do with women's business is it.
A. It very well could be, but it is important to the Ngarrindjeri culture because of the meeting of the waters. I didn't want to say this, but the place of waters relates to what we call - the Ngarrindjeri people call Ngaitji, which is each clan group's symbolic totem so to speak. Those places like that is where these things breed, where they live, where they feed, all those things. You upset the totem area you are upsetting everybody. But I don't expect you would understand that, the Ngarrindjeri Ngatji.
Q. Let me put a suggestion to you: what you are talking about is a disturbance to the environment. Is that right.
A. No, more than that. To what those Ngatji are to the people. They are not just animals and fish and snakes and things to us. They are real. They are more like people. Spiritual.
Q. So it is really nothing to do with women's business, is it.
A. It is combined with all those things.
Q..You were saying that the island is significant because it is a place of women's business, and that a bridge linking the mainland to this place of women's business would be a desecration. That's what you're saying is it.
A. Yes there is no way -
Q. And you don't know, do you, by necessity, about what the women's business is, do you.
R. (WITNESS SHAKES HIS HEAD)
S. So you cannot tell us, can you, in what way the bridge would affect the spirituality of the island, which is women's business, can you.
A. No, I have no way in the world of explaining that to you. I never come here to talk about the womens business on that site.
Q. You are not in a position to talk about it, are you.
A. Because I can't, I'm a man.
B. That's right. So your objection to the bridge really comes down to an environmental objection, isn't it.
A. No, a spiritual
Q. ...Is there some other spiritual aspect to the island which would be affected by a bridge, is there, not womens business.
R. I just finished talking to you about it, Ngaitji related.
Q. I want to put a label on it so that we can understand it. Is it the case that what you are talking about - that is, that a bridge cannot go to the island - is to do with some other spirituality of the island, not womens business.
A. I'm talking about my business.
Q. Can you tell us as much as you can about that.
A. I said it just now, N-G-A-I-T-J-I
Q. Which is what you are talking about, is a question of protecting the island from a lot of people coming to the island and ruining it. That's what it is isn't it.
A. You interpret it as environment, I don't. We have different interpretations it seems. We cannot, as Aboriginal people, separate environment and culture. They go hand in hand.
Q. The Ngaitjis, that is the bird symbols and totems for the clans and people, are in fact the wildlife, aren't they.
A. As you view them, yes.
Q. Why are they different from -
A. Because - no, I can't talk to you about that. It is plain to see you would never understand about that anyway.
Q. I am suggesting that your objection to the bridge, in the end, boils down to really protecting the island from too many people coming onto it and degradations that would lead to in terms of wildlife, plants and that sort of thing. That's what it is about, isn't it.
A. Well, that's what you are calling it.
Q. You say it is more than that, do you.
In explaining to the state and economic interest groups of our passion and desire to protect our law and our territories, we have had to translate into the English language ideas that have been alien to westerners for thousands of years. And this problem is not just one of language, but it is also one of distance. That is, non-indigenous peoples are much further removed from the knowledge and philosophy of their own indigenous identities and relationships to the land than what indigenous peoples are. It is a two thousand year track back for many non-indigenous peoples to the source of their own indignity. Whereas indigenous peoples of this country still carry the law and the knowledge.
The entire landscape is filled with the sacredness of the creators laws. But in protecting the land we frequently have no choice between the threat of physical violence and incarceration.
In R v Walker, Baizam Nunukul, also known as Dennis Walker of the Nunukul Peoples, was arrested and charged for assault and discharging a firearm with intent to evade arrest. Dennis was protecting an Aboriginal burial ground from being destroyed by the Council. Walker's long history as an indigenous activist and numerous relationships to family who had either died or suffered torture whilst incarcerated provided strong grounds for Dennis in taking action of self-protection against an armed police officer. The actions of Walker were fully supported by the elders, who argued in Walker's defence his right to uphold Bundjalung law and the protection of sacred sites. However, Walker was convicted and a subsequent appeal against conviction was dismissed.
As a result of the activism of Indigenous Peoples globally the United Nations Working Group on Indigenous Populations was established in 1982. The WGIP is an important international forum used by indigenous peoples, however it has the least status within the United Nations of any UN body. One of the main tasks of the WGIP has been the drafting of the Declaration on the Rights of Indigenous Peoples. And in the drafting of the declaration the most controversial question has been: will the states recognise Indigenous Peoples inherent right to self-determination?
Self-determination is a term adopted by Indigenous Peoples to express to the world who we are. And by what path or process we should proceed in gaining respect and recognition as Peoples and custodians of the earth our mother. In finding that path or process we look back to our ancestors and consider whether the path we have chosen is the one that will do justice to our ancestors and to their ideas of who we are. We also look forward to the children still coming to consider whether that path will provide them with a good life and that they will know who they are. To know the ancestor in themselves, the custodian of the earth our mother.
The meaning of self-determination and the contexts in which it is allowed to have form is affected by eurocentrism, global politics, global conflict and the increasing paranoia of states to protect their territorial integrity. Indigenous Peoples' claim to self-determination is viewed by the most powerful members of the UN as a potential challenge to the territorial integrity of existing states, one which may result in a potential threat to world peace. As though peace were a known and lived reality that is not already in fragments. For many of us are living in a constant state of siege, and peace is neither known of nor experienced. Since Columbus indigenous peoples have known nothing but conflict and the plundering of our territorial integrity.
And when indigenous peoples affirm and assert indigenous sovereignty, and resist genocide and ethnocide and the continued plunder of our territories, we are viewed as childlike, irrational and not fully comprehending of international law, politics and international relations. This view is an echo from the past and illustrates a closeted racism and continuing global colonialism.
The application of the right to self-determination to Peoples is viewed by the UN as one the most controversial and difficult questions before them. Indigenous Peoples have been excluded historically from recognition of having the right to self-determination by a variety of means. Some of them I have discussed above. Other forms of exclusion have been created by the United Nations, for example the use of mythological geographical barriers to limit the principles of self-determination thereby precluding fully its application toIndigenous Peoples. Indigenous Peoples of Australia, the USA, and Canada for example, are disabled from achieving greater freedom because our lands lie within the colonial state. These are states which refuse to accept they are still colonial relics.
Colonialism was declared a crime by the United Nations who went on to grant independence to colonial countries, almost forty years ago. However Indigenous Peoples still live in colonised enclaves throughout the world. The exclusion of Indigenous Peoples from the de-colonisation process is a further example of colonial-schizophrenia: that is colonialism no longer exists, whilst 300 million Indigenous Peoples still live a colonised existence.
A myth was created, that is, colonialism ended when the UN outlawed its existence and granted independence to colonies that were geographically separate from the colonial state. This myth has become an effective genocidal tool of the state and has left the door open for the rhetoric of post-colonialism to spread throughout the states academic institutions. The myth is supposed to conclude with the absorption of Indigenous Peoples into the colonial state.
But what do they call me now, who have I become? I say I am a Tanganekald mimini. Others have labelled Indigenous Peoples as ethnic minorities. This is another lie. It is an attempt to conceal our identity as being the First Peoples of the land. An identity that pinches at the balls of the colonising state.
The UN in its attempts to either release the pressure from the balls of states or perhaps to buy time, began drafting the Declaration on the Rights of Indigenous Peoples in 1982. The most important article in the Declaration is Article 3. In fact without this Article the Declaration has no body or substance and is without meaning:
Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
However, Article 31 of the draft states as follows:
Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.
I have problems with Article 31. In my view if a people have the right to self-determination than they have it. It un-necessary to provide a shopping list of what it could be or could include. That is, not unless the intention is that the right to self-determination of indigenous peoples is to be construed as a limited right. The WGIP chairperson, Erica Daes has said that the term 'self-determination' as applied to indigenous peoples situations specifically excluded the right of 'secession'.
The states participating in the WGIP drafting of the Declaration have always noted their objection to the inclusion of a right to self-determination in the document. During the meeting of the WGIP in 1994 indigenous peoples demanded stronger language on the right to self-determination and yet the WGIP decided to move the Declaration from its agenda. This move was criticised widely by Indigenous Peoples. It was argued that the move was premature, because the current rules on participation of the Commission on Human Rights, (the next body in the UN hierarchy to review the Declaration in its climb, (or decline) to the General Assembly) would disadvantage Indigenous Peoples. The rules of the Commission on Human Rights allow for the participation of State representatives and NGOs (with a limited right to participate) who are recognised by their respective states. This would exclude Indigenous Peoples from the process unless they were supported by their respective state. Clearly Indigenous advocates for the inclusion of the right to self-determination would be dropped from the process as it proceeded to the General Assembly. This situation would guarantee a monopoly by the states, unless more equitable rules on participation were developed. With the likely forecast being a Declaration reflecting a state perspective on Indigenous Peoples rather than an Indigenous one.
The Commission on Human Rights at their February-March meeting in 1995, passed a resolution to establish its own Working Party to continue drafting the Declaration. Indigenous Peoples have expressed concern and recently the majority of Indigenous Peoples participating in the Commission on Human Rights meeting walked away from the process. Indigenous representatives at the meeting made strong submissions stating that the Declaration in its current form was a document which expressed the minimum standards required for urgent adoption by the General Assembly for the protection of Indigenous Peoples. These minimum standards were essential for the survival of Indigenous Peoples. And that a further derogation from these minimum standards would not only render the Declaration meaningless, but would hasten the looming genocide and ecocide facing Indigenous Peoples.
It is disheartening for many Indigenous Peoples and their communities who have committed at great cost and also sometimes their own lives, to the process of drafting a declaration on indigenous rights. A process that is all but slipping from our grasp.
And still indigenous peoples question not only by what right the colonial power has come to exist but also to what extent colonial rules and regulations become incorporated into indigenous legal systems. I would say there is nothing or very little of the colonisers law that we would seek to incorporate into Indigenous law.
The question remains to be answered, how far is the state prepared to go, in peeling away the layers of the imposed colonial legal system? Are they prepared to undress themselves, and in their alien nakedness surrender to the law of the land?
They held a gun to our head in 1788, they
have never removed it, and it's loaded. Perhaps when the light of the sun
womens dreaming touches them they will see again and remember who they
are. And all will be good again.
Irene Watson, is formally trained in law, consults widely with Indigenous Peoples and is currently completing her Phd at the University of Adelaide.
|What's clear, however, is that it is not just the existence of women's business at Hindmarsh Island which is at stake here. The real question is about the survival of Aboriginal culture and tradition in areas which have been deeply and pervasively affected by white settlement.|
ABC RN 'Background Briefing' story about Hindmarsh
[Kumarangk is Ngarrindjeri for Hindmarsh Island]
The New Official Religion : The Hindmarsh Island and La Trobe Affairs
Another perspective from Austin Gough of The Samuel Griffith Society