Law and Critique

, Volume 28, Issue 2, pp 135–143 | Cite as

Earthbound Law: The Force of an Indigenous Australian Institution

Article

Abstract

Australian Native Title law is critiqued in three moves: 1. Analysing the kinds of knowledge used in Australian Native Title law to make cases for Indigenous land tenure; 2. Analysing how a Nyikina elder narrates a legal matter of concern from his point of view; 3. Speculating about how an Indigenous ‘legal’ institution called the bugarrigarra was mobilised to resist extraction colonialism. These are all experimental moves in that they are partially composed around matters of concern, rather than displaying matters of fact. They are experiments that stage a learning process as they describe (that is, write about in order to add reality to) a number of different events.

Keywords

Aborigines Australia Native Title Narrative Experiment 

In order to approach an (Indigenous) earthbound law of which I have only had glimpses, I would like to take three preliminary steps: 1. look at the kinds of knowledge used (in Australian Native Title law) to make cases for Indigenous land tenure; 2. analyse how a Nyikina elder narrates a legal matter of concern from his point of view; 3. speculate about how an Indigenous ‘legal’ institution called the bugarrigarra was mobilised to resist extraction colonialism. These are all experimental moves in that they are partially composed around matters of concern, rather than displaying matters of fact. They are experiments that stage a learning process as they describe (that is, write about in order to add reality to) a number of different events.

The Day I Destroyed the High Court’s Theory of Native Title

I would like to begin with my appearance as a witness in a hearing under the Native Title Act in Australia. The reason for this self-indulgence is that my claims to knowledge (as a senior Humanities academic) were tested there in unfamiliar, somewhat traumatic, ways. I am sure this is a common experience for expert witnesses, as they are extracted from their familiar contexts (laboratories, board-rooms, classrooms) where their knowledge is mutually-reinforced as reliable, and then that reliability is challenged according to a different set of protocols. I think such challenges should be welcomed, in general, because they cause us to hesitate about what we thought we knew. I welcome them not because all knowledge is compartmentalised and relative, and has to build to expand its authority, but because it has to be rebuilt for the occasion, as it were, and be presented as a gift to strangers who inhabit a different configuration of knowledge, where the existence of already-existing ‘common ground’ is probably illusory.

I appeared for the Goolarabooloo, an Indigenous community from Broome in North-West Australia, fighting for the rights to a piece of their traditional country. Two other Indigenous groups were contesting their claim by putting in their own claims, with different arguments, under the Act. The courtroom was full of members of all three communities: lawyers representing them; lawyers representing different branches of government; and consultant anthropologists, as well as clerical staff. The court, despite not taking place in a traditional purpose-built chamber (and sometimes, remarkably, ‘on country’ out in the bush), was brought into being each day with the usual ritual utterance of the Clerk of Courts, ‘The Federal Court of Australia is now in session.’ After that point, various kinds of knowledge are brought into play via the usual procedures of examination and cross-examination in order to build factual evidence that might be admitted under the Act. These knowledges, in order to make the difference that would legitimise one claimant’s case over another, tended to test the limits of what would be admissible under the Act. And, of course, it is an extremely lengthy and complicated proceeding that will be ultimately determined by the presiding judge in his written judgment. He will decide just how the evidence can test what is admissible under the Act; he may also hesitate before making a judgment that creates some kind of precedent. But, in addition, he does something else as he presides. He maintains a civilised tonality over the whole proceeding. He is uniformly patient and polite; he does not allow the lawyers to break with protocol; and he injects a certain amount of ironic humour that is his sole privilege to dispense.

Native Title cases, in the course of their process in Aboriginal Australia, articulate two major discourses: the Social Sciences (in the form of Anthropology) and the Law. What they are trying to establish, in one case after another, is rather fundamental for all peoples: ownership or entitlement to land. Indigenous peoples whose ownership finally came to be known as ‘customary’ a century after invasion by the English, now have to prove connection to country under the rules of the Native Title (NT) Act. They provide evidence as witnesses called to the Court, but their knowledge has no standing on its own; it has to be interpreted by anthropologists and articulated with the legalities of the NT Act.

And now I come to the point of my court story. On other days, when I was not yet on the stand, I had been listening to proceedings like an ethnographer and was surprised by a few things. One was the way the anthropology used was far from independent, as we imagine expert witnesses should be. The legislation itself had been drafted in the early nineties with the help of anthropologists, and then refined with judgments over many cases over a considerable number of years where many of the same anthropologists and the same lawyers and judges were in the habit of working together.

I noticed their repeated tendency to refer to a culture’s ‘normative system’, and whether certain (Indigenous) practices, notions, and protocols would be ‘contemplated’ in the normative system. Both the Act, and the submissions of the anthropological experts, use these same key phrases. The parties overlap in the reinforcement of this abstraction, ‘normative system’, and the anthropologists (old hands at the game) make assertions about what in their judgement would be ‘contemplated’, or not, in said system. For various reasons they are hoping that the judge will concur with their expert judgement.

Having made these observations, my opportunity to challenge what I considered the overly abstract notion of ‘normative system’ came at the end of a whole day’s gruelling cross-examination in Broome, where I found myself having to explain to the court the meaning of ‘post-structuralism’, because some of my work from the 1980s using that approach had been tabled in evidence (Muecke 1989). And in order to help the court with the idea of ‘post-structuralism’, I had to go back to structuralism:

PROF MUECKE: If structuralism had posited that there is a system of rules underpinning any culture, a coded set of rules that would generate the surface phenomena that you see of that culture, there – there’s a – there’s this relationship of underlying sets of rules, I’m saying that when you approach those – that – you could call it a normative system. If you approach it, it’d be a bit like approaching a – a reflection in a – in a pond and then, when you get closer and you look, doing the tight – the tight ethnographic stuff, the – the whole picture tends to fragment as if – as if you touched the water. And so you’re left with fragments that are nonetheless describable.

MR BLOWES [Senior Council]: Okay.

PROF MUECKE: I hope the court.. .

HIS HONOUR: I think that might’ve just destroyed the High Court’s theory of Native Title. Might be quite justified, nonetheless. That’s not your aim, Mr Blowes.

MR BLOWES: No. I mean, that’s another instance of – of the methodology that you’ve brought to – to this region of – of – you’re not focusing on the underlying system of traditional law and custom; you’re looking at it from the – from, really, the content of – of narratives that are told to you.

PROF MUECKE: Yes, I guess you could say that.

Justice North’s wry little joke demonstrates the kind of superior position he can take over the proceedings and the Act, reflecting on the ‘theory’ that holds it all together. My attack on the abstraction of the normative system, in favour of ‘fragments that are nonetheless describable’ could be developed further. Because no single actor has full knowledge of, or is in charge of, the whole system, it is a construct of the discipline of anthropology that finds its expression only in their reports and in the formulation of the Act. Indigenous informants are used to give fragmentary evidence for the admission of facts, piecemeal, to the system as it is built by the (white) experts. That the ‘normative system’ is allowed to persist as a kind of ‘black box’ that processes Native Title, without each fact of ‘connection to country’ being traced back to that country with tight ethnographic description, means that the traditional owners or custodians of the country have no control over the law that has usurped their law. This much is obvious to them; my aim in this fragment was simply to point to the mode of construction of the knowledge that allows that to happen, something upon which one ‘old hand’ anthropologist with a career in NT has reflected:

the intellectual processes of the expert can be readily exposed. That involves identifying in a transparent way what are the primary facts assumed or understood. It also involves making the process of reasoning transparent, and where there are premises upon which the reasoning depends, identifying them. (Palmer 2011)

A Story About Power in the Belly

My second story constructs Indigenous knowledge from the other side of the frontier. The notion of the law being organised in a narrative fashion is anathema to mainstream law principles and practices even if, in practice, a lot of courtroom talk might be in the form of stories, for instance where parties are cast in hero/villain roles and there is a familiar linear progression from crime to punishment. In NT cases, as much as in other law, the principal task is mechanically to match the facts of the case, the evidence, to the existing laws to the point where there are ‘sufficient grounds’ for a decision.

In Indigenous Australia the process of establishing evidence can be short-circuited, disconcertingly, if an Aboriginal accused simply says ‘Yes’, when asked: ‘You bin kill your missus?’ (Roe 2016, p. 28) This straightforward honesty interferes with the presumption of innocence and the slow accumulation of facts that will lead to sufficient grounds for a conviction. The exchange occurs in a story narrated by Paddy Roe that deals with the friction between Goolarabooloo law and the law of the invader. The story, ‘Mirdinan,’ is summarised as follows:

A maban (doctor) is living with his wife. While he goes fishing she is having an affair with a Malay. The maban discovers them and later questions his wife who lies. On further questioning she admits to the affair and her husband kills her. He leaves camp and goes to join his countrymen, where the police pick him up to take him back to Broome. Halfway he escapes by magical disappearance.

The police pick him up again and put him in the lock-up in Broome. He again escapes by turning into a cat and being chased out of the cell by the sergeant. He returns to his people.

The police pick him up again and put him on the boat to Fremantle to be hanged. At the moment of hanging he changes into an eaglehawk and flies home. He makes a song on his return.

The police and people make him drunk to destroy his power, nail him in a box, and drown him in the ocean.

Mirdinan was a Yawuru man, a classificatory uncle for Paddy Roe, so the story, a ‘true story’, is a kind of legend about a man who may have lived about the turn of the twentieth century. The initial transgression that sets the three narrative episodes in motion is that of the wife’s affair with a figure problematically external to Yawuru law, a Malay pearl-diver. In the ‘old days’ no-one could be outside Indigenous law, but these newcomers are, and the ‘whitefellas’ have their own kind of law, with police and lock-ups as well.

There are three major ‘externalities’ that test the power of Indigenous law in this story: strangers disrupting kinship rules; white law usurping the Indigenous ‘right to violence’; and alcohol. None of these problems would have arisen without the process of colonisation, and the story is composed in such a way to propose a solution to the problems in terms of Indigenous law. Firstly, there is the wife’s transgression. Love affairs within the kinship group are controlled by kinship rules, such that some transgressions are much worse than others. A way for the Indigenous law, as articulated by kinship, to deal with the Malay problem, is to integrate the man into the system, which did often happen. This integration would also be economic; people like the Malay man would have to contribute. But in this story this does not happen. The wife comes back from her encounters empty-handed, when she claims she is fishing. So her transgression is not simply sexual; she is failing to keep the two key aspects of the law alive: kinship and the distribution of goods.

What does the Indigenous group do now that they have a murderer on their hands? The traditional way is for the wife’s family to demand a ritual ‘payback’ punishment like spearing through the thigh. But now they have to deal with white law, which has usurped their right to legitimate violence, so they hand him over. But because he has shamanic powers, he is able to trivialise the power of white law with three successive self-metamorphoses: a simple disappearance; into a ‘pussycat’ (introduced species); and finally into an eaglehawk (totemic species). For the Indigenous listener these are reinforcing expressions of the way they understand the Indigenous power behind their laws. Laws are not mere code; they have manifest powers.

The shaman’s power has a locus (‘ngalea means that’s his…power…in his belly’ (Roe 2016, p. 14)), a power which he has activated to transform himself. The final externality comes in as the alcohol that destroys that power (‘they had to give-im drink…before they can beat-im you know’ (Roe 2016, p. 17)). Alcohol is a highly destructive agent on this colonial frontier. What the story asserts about Indigenous law is that without the alcohol factor, ngalea is so strong Mirdinan could always elude capture.

Bugarrigarra Versus Extraction Colonisation

Paddy Roe’s story was told in Broome, which has 3700 Indigenous people out of a total population of about 12,700 permanent residents, and is located in the far North-West of Western Australia, over 2300 km from the State capital in the south. Perth was colonised in 1829; by the end of that century pearling and agriculture were established in Broome. Today it still feels frontier-like for many visitors because of its ‘remoteness’ from the centres of power; the ‘modern’ institutions have small offices up here (the government departments, the banks, the mining corporations), like the tentacles of an inevitable growth from ‘down south’, and earlier from London, they hover between live-in settler colonialism and the newer ‘whatever you can get away with’ neoliberal extraction colonialism with fly-in, fly-out workers.

This county is home for the Indigenous owners, and has been ‘from day one’, as they say. It cannot be ‘remote’, for them and it is replete with its own institutions, some traditional, some forged out of the hybridisation of contact, like the Kimberley Land Council. It is one traditional institution, the bugarrigarra, which I would like to explore in terms of the operations that make it powerful. Unlike the modern institutions that are recently and precariously installed on arbitrary locations it is spread out, networked and deeply embedded in its territory, and through this it has continued legitimacy, as we shall see. For Aboriginal philosopher Mary Graham there are two great axioms of Aboriginal jurisprudence that we can illustrate: ‘Land is Law’ and ‘You are Not Alone in the World’ (Graham 1999, p. 105).

However, we can set the scene with a conflict. The mining giant, Woodside Energy and its allies, and the local Goolarabooloo alliance went to war between 2009 and 2013 over the former’s plan to build a major gas processing facility. Each had its own organisational scripts and future fantasies; then, in the friction there were hesitations, bungles and attempts at negotiation that slowed down Woodside’s push to move the frontier forward (otherwise known as ‘modernisation’) to prolong the life of its institutions in this place. The Goolarabooloo, for their part, had nowhere they would want to go, so they established a protest camp and a blockade and made the bugarrigarra stand up as a shield in their defence and in the defence of its country. They eventually won. As I write, Woodside has finally packed up its Broome office and retreated to its skyscraper in Perth. So how did a core group of about a hundred Goolarabooloo successfully oppose the juggernaut led by Woodside? What part did the bugarrigarra play in this? If I can provide an answer to these two questions I think that will furnish a glimpse of how an institutional analysis works (as opposed to a ‘cultural’ or ‘social’ analysis). Institutions, importantly, have a material basis. They are not just a ‘society’ of humans. ‘Modern’ ones are bricks and mortar with annual budgets; the bugarrigarra is on-going reciprocal connection with ‘living country’. Unfortunately, NT law tends to sever the fundamentally important Indigenous link between body and country to (as Bronwyn Lay brilliantly puts it) ‘freeze the continuity, reciprocity and growth of Aboriginal jurisprudence’ (Lay 2016, p. 282) by putting it in the past as tradition, or ‘normative system’, as we have seen. Only common law can move forward by making decisions.

Paddy Roe was the grandfather of the leading men who battled with Woodside. It was he who ‘put them through the law’ and instilled the imperative to ‘keep it alive’. Filmed in the BBC Millennium TV programme (popular anthropology), we can see Paddy Roe distinguishing ‘bugarrigarra’ from ‘dreamtime’:

Law –

That’s bugarrigarra, law –

I think English say–

‘dreamtime’ –

But we say bugarrigarra

Law. (Maybury-Lewis 1992)

and ‘bugarrigarra’ is equated with the English word ‘law’.
And then he inscribes an opposition, with his finger into the sand, somewhere on that northern coastline. He traces one horizontal line: ‘This is the bugarrigarra; that’s our people’, then slowly above it and parallel, ‘And this is European people …came after’:

that’s all before, white man and this one –

now, when all the people born in this country –

they moved their camp –

they went here [draws a third parallel line between the other two] –

because they didn’t want to live like how we live, with the law and

everything –

our people –

they went and shift their camp in the middle –

er, they want to be little bit more better than us –

see –

they didn’t want to live like us – [nods] –

we let them go too, that’s alright –

to learn about the English and all about schooling you know, European ways –

but they never come back to us –

we bin waiting too long –

It is no accident that it is Paddy Roe’s preference to speak and ‘write’ at the same time. Paddy Roe’s finger inscribes bugarrigarra into the sand as he is saying ‘this is bugarrigarra, law’. He used to do it over and over, whenever some ‘whitefella’ developer came along wanting to ‘modernise’ his country. As he inscribes bugarrigarra into the country he is literally encoding an indexical meaning, something like: ‘I’m indicating it is going to be hard for you blokes to move us off here.’ The bottom line he traces is bugarrigarra and it is in the country, on this very country that the ancestors travel, and whose songs are sung every time they perform a ceremony to make men. The second ‘law’ line is the new arrivals, and the third is what he thinks is a lost generation.

What this description of practice makes clear, I hope, is that an institution like the bugarrigarra has to be ‘jurisprudentially creative’ (Lay 2016, p. 292), not frozen in tradition, and so it needs advocates who are prepared to go on television, for instance, testing their knowledge in unfamiliar contexts. Its abstractions as well as its practices feed into this creativity: the idea of intergenerational responsibility that the Roe grandsons uphold with passion; the idea of inclusiveness as ‘greenie’ activist friends come of their own accord to help with the anti-gas campaign. At this frontier, neoliberal extraction colonisation has been halted for the time being. Because it is a frontier, we have seen how capitalist bubbles can burst when no longer supported by their networks, and when they assume that a universalising modernist script can roll out its organisation on a one-size-fits-all basis.

The mining companies came to Goolarabooloo country armed with, they thought, a perfectly realist apparatus, strategically plugged into their arrays of institutions that precisely articulated financial investment with the objectivity of the hard sciences (geology, chemistry etc.); with the technological capacities of engineering; the rights afforded by the law and the executive powers of politics. This way of seeing the modern institutional complex—the financial/industrial/law enforcement complex—more usefully replaces catch-all concepts like ‘society’ and ‘culture’ because we can follow their courses of actions more precisely (in and out of materials and abstractions) as they come prepared to industrialise, rolling out that ‘progress’ script (McGee 2017).

This did not work in Goolarabooloo country because the industrialisers found they were not dealing with a people who were ‘just’ a culture; they had an institution, the bugarrigarra, that could keep on going. It was not just the spiritual branch of a past culture. It could continue to add reality to itself in an on-going way: it added ‘newly discovered’ dinosaur footprints (the bugarrigarra figure of marala, emu-man) (Salisbury 2017); various protected species of animals and plants, even green NGOs and individual celebrities who all deferred to the importance of the bugarrigarra as the inalienable earthbound law of the country in question. It was this earthbound law that practices and sanctifies the material co-substantiality of bodies and country, which stood in the way of an apparatus that treats land as property, material as resource, and society as humans cut off from the country.

References

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Copyright information

© Springer Science+Business Media Dordrecht 2017

Authors and Affiliations

  1. 1.School of HumanitiesUniversity of AdelaideAdelaideAustralia

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