Declarations of Interdependence

A Legal Pluralist Approach to Indigenous Rights

Kirsten Anker

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317153849
• Edition: 1
• Topic: Droit
• Subtopic: Droit public

This book takes up the postcolonial challenge for law and explains how the problems of legal recognition for Indigenous peoples are tied to an orthodox theory of law. Constructing a theory of legal pluralism that is both critical of law's epistemological and ontological presuppositions, as well as discursive in engaging a dialogue between legal traditions, Anker focusses on prominent aspects of legal discourse and process such as sovereignty, proof, cultural translation and negotiation. With case studies and examples principally drawn from Australia and Canada, the book seeks to set state law in front of its own reflection in the mirror of Indigenous rights, drawing on a broad base of scholarship in addition to legal theory, from philosophy, literary studies, anthropology, social theory, Indigenous studies and art. As a contribution to legal theory, the study advances legal pluralist approaches not just by imagining a way to 'make space for' Indigenous legal traditions, but by actually working with their insights in building theory. The book will be of value to students and researchers interested in Indigenous rights as well as those working in the areas of socio-legal studies, legal pluralism and law and cultural diversity.

Chapter 1
Introduction

In a dream where there is no fear of retribution Nungas face the Australian state and ask, ‘By what lawful process have you come into being?’ ‘An Act of State’, says the High Court, and it is as though doctrines of state supremacy conjure a magic that absolves centuries of unlawfulness and violence against Indigenous peoples. The question is – now that terra nullius is ‘known’ to be dead – what constitutes the state? This question is met with the silence of an unrecognized violence – a power of the state to annihilate all that is different (Watson 2002: 265).

This is the radical question of justice, too: not ‘How much do I get?’ but ‘Who are we to each other? What place is there for me in your universe, or for you in mine? Upon what understandings, giving rise to what expectation, do we talk? What world, what relations do we make together?’ These are the questions we ask our law to answer (White 1990: 233).

The Project

When the Australian High Court’s decision in Mabo and Others v Queensland [No 2]¹ (1992) (Mabo) came out and the debate over ‘native title’ hit the media, I was studying undergraduate property law. Naïvely, I remember feeling relief at the decision – well finally! Indigenous rights have been recognized, so everything should be okay now. The false ‘doctrine of terra nullius’ which had treated Australia as a land without owners had been rejected,² and something about that magic word ‘recognition’ promised resolution, authenticity and justice. Whenever the recognition of Indigenous rights³ has taken place, from the constitutional recognition of Aboriginal rights and the federal government’s land claims policy in Canada, the state acceptance of the Sami parliaments in Norway and Sweden, and the host of constitutional reforms in South America, to the signing of the United Nations Declaration of the Rights of Indigenous Peoples (2007), it carries the sense that governments and courts are progressively doing the right thing.

And yet, as the Australian native title debates ensued, everything was not okay. Miners and farmers were not happy. Maps of Australia appeared with menacing black patches of potential ‘lost’ land; backyards were threatened on national television.⁴ My relatives, farming what I later learned was Yorta Yorta country,⁵ complained that everyone had gotten along fine until native title stirred up trouble. Others felt that native title gave special rights and divided the community. Native title undermined the Commonwealth of Australia by recognizing Indigenous law as if it were the law of a foreign country in our midst. Native title promoted a ‘black armband’ view of history⁶ and destroyed national pride.

Even the beneficiaries of native title, Indigenous Australians, did not think everything was okay. Not only did they have to weather the backlash of anti-native title vitriol, but the promises of recognition did not materialize. Native title was just available over the remnant land that the Whites⁷ didn’t want. Made weak and inferior by easy extinguishment, native title represented racist inequality under the law. More profoundly problematic for the possibility of justice through legal recognition, though, was the claim that recognition is a twisted colonial trick. While purportedly based on an existing and authentic ‘true’ Indigeneity, culture and law, the criteria of authenticity are always and forever set by the agents of colonial power through academic expertise, parliament and the courts. The structure of this claim lent itself to criticisms of misrecognition and misrepresentation, where the forms of native title as it made its way through the system were compared to a more genuine version, an Indigenous perspective on land which found the official version of native title wanting.

My sense that there was something crucial in the complexities of these debates, and that they might teach us something important about law in postcolonial polities, drew me to undertake the research culminating in this book. Why was recognition so appealing (or so threatening)? Why did it fail? If the key concern was equality, well then, equality of what? Equal treatment of our (different) property, simply begged the question of what property was and how far those differences would extend. What did it mean to say that the common law and Indigenous laws co-exist? Could authentic Indigenous perspectives ever be represented in the legal system? And what exactly were the reasons for resistance to the idea of Indigenous law? The recognition debate seemed to go to the heart of James Boyd White’s radical justice question: Who are we to each other, and what space is there for Indigenous peoples in the universe of national law? Seeing the recognition of native title – a form of land title with its source in Indigenous legal traditions – as effecting a perceptible constitutional shift in the nation, as Justice Gummow of the Australian High Court famously said (The Wik Peoples v Queensland; The Thayorre Peoples v Queensland 1996 (Wik): 230),⁸ implies this sense of the relations we make together, and the spaces made for the co-existence of different universes. But what struck me, on closer inspection of the native title debates in Australia, was the asymmetrical nature of the shift: national law admits only change over which it has firm control. It maintains the prerogative of the final decision. It recognizes rights derived from Indigenous law but determines the meaning of that law and the parameters for recognition. It never submits itself to the potentially disruptive process of asking, ‘What place is there for me in your universe?’

The purpose of this book is to imagine a law capable of taking this risk. Such a law cannot claim to be the only law, nor rest on the unquestionable sovereignty of the state. It cannot rely on aspects of its universe – whether notions of history, fact, language or space – as if they are universal. It cannot mistake its power for the truth. In focusing on prominent aspects of legal discourse and process, this book seeks to set state law in front of its own reflection in the mirror of Indigenous rights. Dimly, in the reverse image in the glass, there is the possibility of another law: that of Koori, Murri, Nunga, Gitxsan, Mi’kmaq and Inuit peoples.⁹

But despite this haunting image, the monism of the one law persists, solid and pervasive. It can be found in the doctrine of sovereign monopoly, the rule of law, and the one humanity equal before the law. It is there in the idea of law as a systematic and ordered package of rules and principles with stable and determined meanings, unified by a single and central organizing principle. It is a key characteristic of the positivist and empiricist rationality with which modern law ‘thinks’ in finding the world composed of stable facts and objects, a separate thing to which it can then be applied. In modern Western legal theory, legal monism (law as a singular system or kind of object with a monopoly in a given territory), legal positivism (the possibility of identifying law according to pre-existing criteria, a property that is taken to give it impermeable intellectual boundaries) and legal centralism (the formal criteria for law are located in state action) make up a consensus about the nature of law (Macdonald 1998; Davies 2005). The corollaries of monism, then, are unity, coherence, autonomy, stability, objectivity and reification.

People who experience an ‘other’ law, like Nunga legal academic Irene Watson (cited in the epigraph), have no difficulty in pointing out the ‘Just So’¹⁰ quality of the State’s answers to existential questions. Not only do these answers attempt to brush over the violence with which the State’s supremacy was established, but they deny the ongoing colonization of Kooris, Murris, Nungas and others by insisting that there is ultimately one law, one knowledge and one truth. In this context, any claim for ‘recognition’ then happens in the epistemic language of settler law that will try to name and fix Nunganess as a fact. To do otherwise would be to risk acknowledging partial legitimacy, an incomplete domination, the shifting foundations of knowledge, and the possibility of obligation to another law. So conversely, to start to see another law and to call for thinking in terms of legal multiplicity is to welcome indeterminacy, fluidity, relation, subjectivity and contestation.

It is this call that Declarations of Interdependence answers. In the chapters that follow I diagnose some of the implicit assumptions about law that have directed the development of the law and practice of Indigenous rights in certain ways, and suggest an alternative way of thinking about law that may well offer less stability and coherence (the ‘certainty’ clamoured for in native title debates) but more honest answers to better questions about justice. The analyses in this book are deeply grounded in a series of Australian – and to a lesser extent, Canadian – case studies, and their strength and richness lies in their specificity. However, the terms with which they engage – recognition, pluralism, translation, proof and negotiation, as well as sovereignty, difference, authenticity, continuity and change, objectivity and subjectivity, dialogue – resonate in other places in which justice for, by and with Indigenous peoples is at stake, and beyond that, where the development of a general critique of Western law and jurisprudence is of interest.

It will be my argument that an approach to law known as ‘legal pluralism’ provides a more apt language for treating ‘the justice question’ of the place of Indigenous law than orthodox legal theory because, in the way I conceive it, a legal pluralist recognition is an engagement about the nature of law and not about a formal relationship between two fixed entities. A first premise of legal pluralism is that state law is not the only legal order in any given social space. In scholarship this premise has been largely supported by social science techniques and analysis. The argument against the monopoly of state law is thus supported by evidence of multiple forms of social control by ‘unofficial’ legal orders. A second premise has been developed by critical legal scholars and others – attacking the monism of modern law from the inside – who argue that state law does not have a monopoly on legal meaning because language is indeterminate; that its stable, coherent foundation is a myth; and that the reification of law is a denial of the human element, of relation, interpretation, symbolism and embodied practice.

My argument will develop these two legal pluralisms, the first seemingly ‘looking out’ to other laws and the second ‘looking in’ towards the nature of state law. In that my approach is sceptical of the objective reality in which law is assumed to operate, it is a critical legal pluralism. I perceive law as constructing, and being constructed by, notions of time, space and subjectivity. In that I am interested in semantic, symbolic and relational dimensions of law, and hope to develop my idea of law through a conversation with many interlocutors, both Indigenous and non-Indigenous, it is a discursive legal pluralism. Together these two dimensions of legal pluralism express the interdependent qualities of law.

This book draws on a broad base of scholarship in addition to legal theory, from philosophy, literary studies, anthropology and social theory, to Indigenous studies, literature and art, all of which can help us to think against the grain in law and to seek the ‘unofficial’ law of native title, the law that is not dictated by the official organs of the state. It is an approach that takes pluralism – the minimum condition for the ‘recognition of difference’ – to be not just the co-existence of multiple legal systems, but a plurality in the very nature of law. In contrast to the unity of monism and the objectification of positivism, law can also be seen as inherently partial, fragmented and shifting, its meaning never given but rather derived from an inherently dialogic process. Instead of a solid edifice of rules, I show that law’s structures of fact and law, property and sovereignty, traditional and modern, Indigenous and Australian or Canadian, are made not of concrete but of the dynamic play of human discourse: symbolic and embodied exchanges on which we act, and acts which make our world meaningful.

This is not so much a book about ‘Indigenous law’ as it is about the processes of interaction which produce an entity that becomes known as ‘Indigenous law’. In critiquing those processes the book also puts into question the constitution of what I know as my own law. Uncovering the blind spots, the ‘Just So’ stories, and the paradoxes is the first step in challenging them. This introduction first provides a brief history of the advent of ‘native title’ in Australia in order to describe the problem I am addressing in legal pluralist terms. It then goes on to lay out the conceptual, methodological and ethical concerns of my project. The final part introduces some critical resources that will serve the rest of the book, and shows how they relate to a theory of legal pluralism.

Native Title and Legal Pluralism

Unlike in North America and New Zealand, there was no history of treaty-making in Australia. The first case claiming traditional rights to territory, Milirrpum v Nabalco (1971), failed on a number of bases, one of them being that the common law of Australia did not recognize traditional title in the absence of acts of recognition by the Executive. Although a number of state and territory-based land rights statutes were enacted following this decision, it was not until the Mabo decision in 1992 that Milirrpum was overruled, and native title was recognized as the inherent rights and interests in land, held by communities of Aboriginal peoples and Torres Strait Islanders and deriving from traditional laws and customs, that survived the Crown’s acquisition of sovereignty. The core of the definition of native title was reproduced in the Native Title Act (‘NTA’ or ‘the Act’) the following year, and a National Native Title Tribunal (‘NNTT’) established to manage the claims process and act as mediator in disputes.

The majority of commentary on native title addresses itself to the fairness of the Native Title Act and the interpretive choices made by the courts – whether the categories of existing land titles that extinguish native title are too broad, for instance, or whether the requirements of continuity with a pre-existing traditional law are too strict. The focus is often on the workability of the system and the benefits it delivers, in real terms, to Indigenous communities or to the ‘national interests’ of certainty and resource development. Even for those more likely to see the situation in terms of postcolonial justice, the focus is on the practical impact of statute law and judicial decisions. The arguments employ the powerful, accessible language of equality before the law, but tend to take the structures of the state legal system and the concept of law more or less as givens.

But without questioning the conceptual architecture of law, critics miss the intricate ways in which Western law is tied up in a colonial project that either excludes or assimilates others to its terms (Fitzpatrick and Darian-Smith 1999: 1–3). For instance, the claim of misrecognition implies that one ought to aim towards better representation, in the law, of an Indigenous reality. However, it thereby re-imprints a European epistemology about the knowable, ascertainable nature of the world that accompanies positive law: the one commanding people through the edicts of state officials, the other ordering the world of phenomena through scientific discipline. The law is applied to the facts, but the facts are always and already compromised, mediated through colonial institutions, Western science, common law technologies of proof and the English language.

If attempts at recognition by the law appear as an endless trajectory, leading down a hall of mirrors reflecting one European perspective after another (Howitt and Suchet-Pearson 2003: 557), and if the inevitability of this ethnocentricity is an inherent limitation in the law, then for many the solution must be political. Justice in Indigenous land claims can only be resolved through negotiated settlement, and the legal aspect of the project abandoned. I agree with the focus on negotiation, but contend that law will not go away by making the matter a pragmatic or political one. We have only shifted the problem. In any case, the idea that law is separate from politics is itself one of those European mirrors.

Indigenous critiques of the Eurocentric nature of state law are plentiful, including those who compare the changeable, arbitrary ‘book law’ of the Europeans to the strength of a moral law that is literally grounded in the land. In academic circles, it is frequently anthropologists, historians or political theorists who have some occasion to question the orthodoxy of positive law in Indigenous rights jurisprudence, for instance, because these writers are qualified to challenge the assumptions that judges and others make that touch on their domains in native title matters: the nature of ‘fact’, the value of texts as a window on historical truth, or the separation of the legal from the political. Very often, however, they are just as happy to leave the definition of non-Indigenous law to the lawyers, and to assume that, in its own domain at least, the common law is as positivist and monist as it claims to be.

One brief example will suffice. Christos Ma...