Indigenous Peoples as Subjects of International Law

Irene Watson, Irene Watson

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317240655
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

For more than 500 years, Indigenous laws have been disregarded. Many appeals for their recognition under international law have been made, but have thus far failed – mainly because international law was itself shaped by colonialism. How, this volume asks, might international law be reconstructed, so that it is liberated from its colonial origins?

With contributions from critical legal theory, international law, politics, philosophy and Indigenous history, this volume pursues a cross-disciplinary analysis of the international legal exclusion of Indigenous Peoples, and of its relationship to global injustice. Beyond the issue of Indigenous Peoples' rights, however, this analysis is set within the broader context of sustainability; arguing that Indigenous laws, philosophy and knowledge are not only legally valid, but offer an essential approach to questions of ecological justice and the co-existence of all life on earth.

Chapter 1

Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions

Ambellin Kwaymullina

Australia is a continent, not a country.

This land is home to the hundreds of Aboriginal homelands that we name our Countries, each with a language, culture and people. It is home as well to the Torres Strait Islander People whose lands lie in the Torres Strait Islands off the Queensland coast (although, as an Aboriginal scholar, this chapter is founded in my understanding of Aboriginal systems). The term ‘Aboriginal’ as it is used throughout this chapter refers to the prior occupiers of mainland Australia, Tasmania and some offshore islands; when I intend to include Torres Strait Islander Peoples and Indigenous Peoples from elsewhere in the world, I will use the term ‘Indigenous’. The many Aboriginal legal orders of our many different Countries are now often spoken of as if they form a single body of law. But the use of the singular to describe these legal systems, along with the grouping of our nations under the descriptor ‘Aboriginal’, hides a truth: that the Aboriginal legal tradition was always an international tradition. Aboriginal Nations formed complex networks of relationships, traded goods, entered into negotiations over shared law spaces, respected each other’s boundaries and were subject to consequences if they did not. An international legal order did not begin with the writings of Grotius or Vattel or the rise of the Westphalian state; nor did an international human rights regime start with the Universal Declaration of Human Rights or with any of the human rights treaties and associated monitoring bodies that arose post-1945. These are newcomers all, systems in their infancy that imposed themselves onto ancient international legal orders arising from the interactions of the Indigenous Nations of this earth.

The purpose of this chapter is to reflect upon three of the norms that underlie the international legal tradition of Australian Aboriginal Nations. I am characterising these norms as ‘narrative sovereignty’, ‘relationship-based citizenship’ and the ‘right to be human’. In so doing, I am applying an Indigenous perspective, which is to say, a perspective grounded in an Indigenous centre and which – consistently with Indigenous world views – is holistic, non-linear and relationships-focused.¹ However, my analysis is only one Indigenous view among many. The Indigenous Peoples of the globe share commonalities in terms of earth-based world views, experiences of colonialism, and the present-day disadvantage which is colonialism’s legacy.² But we are also highly diverse, and my own perspective is influenced by my own knowledge and experiences, as well as the culture and history of the Palyku People from whom I come.

The world(s), the Dreaming(s) and the apocalypse(s)

The legal systems of the Aboriginal Nations of Australia began in what is sometimes called the ‘Dreaming’.³ The Dreaming is the beginning from which all other beginnings emerge, for whatever existed before could not support life as we know it now. It should be noted, however, that in Aboriginal systems, terms such as ‘begin’ and ‘end’ do not carry linear implications. Time does not run from the past through the present and on into the future, but is simply part of larger cycles of existence.⁴ Like all things, time exists in space and is as susceptible to action and interaction as any other form of life. To say something ‘begins’ is to say that something new has entered the world, but it is perhaps never entirely correct to refer to anything as ending. Everything lives and everything moves through phases of creation; and while some transformations are so profound that it may not be possible to be sure what emerges on the other side of the transformative process, this is not the same as an end. Besides which, everything ultimately returns to Country, and since in holistic systems the whole is both more than its parts and in all its parts, every part of Country contains Country entire.⁵

Through their actions, the many Dreaming Ancestors embodied ‘what is’, along with the rules (the law) that would allow ‘what is’ to continue always. But just as there is not a single Aboriginal Country, there is not a single Dreaming. Rather, there are Dreamings who danced, sang, fought, stole, slept, and who – through these and a thousand other interactions – brought Aboriginal Countries into being. Among their stories are those of Old Man Karramala (Old Man Goose) who played a didjeridu and made a waterfall in Mak Mak Country;⁶ the mouse Galu who found where Bangarra (blue-tongued lizard) had hidden all the water in the rainforest lands of the Jirrbal;⁷ and the Nyungar tale of the little Djidi Djidi bird who outsmarted the eagle.⁸ The journeys and actions of the Dreamings can be traced in the geography of individual Aboriginal Countries and in the patterns of behaviour of all life. The Dreamings are also the source of the law, which at its broadest is the ways of living in Country that sustain Country. For thousands of linear years, Aboriginal Nations moved through the cycles of creation laid down by the Dreamings and the world was constantly made anew. Then came the apocalypse.

As the West measures time, the apocalypse began on the east coast of Australia in 1788 and reached the lands of my people, the Palyku, in the 1860s. It was not a single apocalypse but a multitude; a cycle of destruction that repeated in every Aboriginal Nation. Each cataclysm varied in its details but its larger patterns of violence remained the same. Psychologist Judy Atkinson (Jiman and Bundjalung), drawing on the work of Donald Baker, has identified three cycles of violence: overt physical violence (invasion, disease, death and destruction); covert structural violence (enforced dependency, legislation, reserves and removals); and psycho-social domination (cultural and spiritual genocide).⁹

Aboriginal people, like Indigenous Peoples elsewhere, lived through the end of the world but we did not end; nor did our culture or our Dreamings. But we are now nations existing within the nation-states that arose from, and inherited the benefits of, our dispossession. Further, the laws and legal institutions of these nation-states sprang from the lie of Indigenous inferiority that was required in order to assert the moral and legal authority required to claim our lands.¹⁰ In 2007, the United Nations General Assembly made a limited acknowledgement of Indigenous rights in the form of the Declaration on the Rights of Indigenous Peoples. But, as has been pointed out by some Indigenous scholars, the reason those rights required elucidation and protection in the first place is because of their continued violation by the nation-states to whose dominion – and domination – we remain subject.¹¹

Indigenous academic Leroy Little Bear (Blood Indian Tribe, Blackfoot Confederacy) once identified that one of the problems of colonialism is that it tries to maintain a singular order, suppressing the diversity of human world views and typically resulting in oppression and discrimination.¹² The Indigenous Peoples of the globe who are marginalised by this singular order often have our concerns framed as ‘Indigenous problems’, which overlooks three things. First, the degree to which the laws, institutions and policies of colonial nation-states created, promulgated and continue to benefit from the oppression of (and discrimination against) First Peoples. Second, justice is of its nature a universal value; to deny it to one erodes it for all. Third, diversity is necessary. There is a recognised link between cultural diversity and the biodiverse environments upon which the human species depends for survival, and Indigenous Peoples are the guardians of most of the world’s cultural diversity.¹³ Beyond this, a singular approach is unlikely to be sufficient to grapple with the increasing complexity of issues that face human societies.

Aboriginal Nations of ‘Australia’ and an international legal tradition

Narrative sovereignty

When Aboriginal people meet for the first time, it is common for us to introduce ourselves by reference to where we come from rather than who we are, or perhaps it is more accurate to say that in speaking of our Country we do speak of who we are. One of the reasons for the diversity of Aboriginal Peoples – and of Indigenous Peoples elsewhere in the world – is the biodiverse environments which form and inform all aspects of our existence. The Palyku are from inland, freshwater Country, a homeland that demands constant movement in order to avoid exhausting food and water sources and ensure that all life in Country survives. Homelands with more abundant resources require less movement but the same careful management, and the narratives of our Countries are the narratives of ourselves. The whole is more than its parts and the whole is in all its parts; every Country carries different strengths which are also the strengths of the people who belong to that land.

It flows from the above that to speak of ‘sovereignty’ is to speak of a concept very different from traditional Eurocentric notions of dominion over (non-living) territory. Country was given, not taken; to assert autonomy in regards to a Country is to assert a relationship to place comprised in equal part of rights over Country and responsibilities to it. A right cannot exist independent of a corresponding responsibility, for all Aboriginal relationships are reciprocal in nature, and in this sense are informed by the fundamental reciprocity that underlies all others: that you must care for Country if you expect Country to care for you.

The relationship between Aboriginal Peoples and their Countries is founded in story. It began with the narratives of the Dreaming whereby the many Aboriginal Countries were, and are, created. It continues through the daily participation in, and management of, the sets of relationships between all life that the Dreamings established. In the words of Whadjuck and Balardong Nyungar man Len Collard:

As each generation of Nyungar passes through, it is our duty to listen to, or tell, and then remember the yarns. As the current and future generations of Nyungar, we take on these storytelling responsibilities, passing them on to future generations of Nyungar … so they are brought up to understand and take their responsibilities and place as active participants and custodians of such ancient boodjar [land] and katitjin [knowledge].¹⁴

Narratives – whether in the form of song, dance, art or ceremony – also form evidence of sovereignty, although it is evidence that has often been poorly understood in the legal systems of the colonisers, which are accustomed to a different form of literacy. And from an Indigenous perspective, it is difficult to conceive of how it is possible to claim ownership of a land if you do not know its stories and hence cannot accurately place yourself within the network of relationships that is Country itself. The answer of the colonising states of Western Europe to this conundrum was twofold. First, an assertion of a claim of right over inhabited territories on the basis of the denigration of the existing inhabitants via the many iterations of the doctrine of discovery (the idea that land belonged not to its inhabitants but the first Christian European nation to ‘discover’ it) and like notions.¹⁵ Second, the application of violence that cycled through the physical, structural and psycho-social stages identified by Atkinson, above. This twofold claim is inextricably interlinked, because the violence was itself made possible by the denigration of Indigenous Peoples that founded the legal claim of right.

Indigenous legal scholar Robert Williams has characterised the sustaining idea of colonialism as being that ‘the West’s religion, civilization, and knowledge are superior to the religions, civilizations, and knowledge of non-Western peoples’.¹⁶ However, once Indigenous Peoples are recognised as fully realised human beings with ways of knowing, being and doing that are as valid as those of the West, this idea is shown for the lie it always was. But the courts of the colonisers have often proved adept at turning their gaze away from the question of whether the assertion of inherent European superiority could be sustained, and what consequences might flow if it could not. In 1823, Chief Justice Marshall of the US Supreme Court acknowledged that the discovery doctrine was an ‘extravagant pretension’, but concluded that it ‘becomes the law of the land, and cannot be questioned’ once a territory had been acquired and held under it.¹⁷ In 1992, a majority of the Australian High Court was prepared to disavow the notion of terra nullius,¹⁸ the idea that the Australian continent was a land uninhabited and hence open to be claimed because Indigenous Peoples were not sufficiently ‘advanced’ enough to be regarded as meaningfully occupying the soil (which was to say, our cultures and laws did not resemble those of Western Europe). But, like Chief Justice Marshall almost one hundred years before, the High Court has been quick to affirm the sovereignty of the coloniser.¹⁹

This means the conundrum of how others acquired sovereignty over Aboriginal Countries is still without a satisfactory answer. We always knew terra nullius for a lie, and this has now been recognised by the courts of the nation-state that arose from that fiction. But if this justification has been discarded, what remains? There has been talk of a treaty raised in the context of current discussions regarding the potential constitutional recognition of Australian Indigenous Peoples,²⁰ although the process by which this could be done so as to ensure proper representation of the multitude of Indigenous Nations of Australia is not clear. But even were a treaty to eventuate, it would address internal governance arrangements and would not alter the status of Indigenous Peoples in international law nor give international recognition to the hundreds of Australian Indigenous N...