1 The Debauched Commons: A Dark Parable

Truth and justice with their tongue cut out can hope for no other help than [beauty]. [Beauty] too has no language; it does not speak; it says nothing. But it does have a voice with which to call out. It calls and indicates justice and truth which are voiceless. As a dog barks to bring people to the side of his master lying lifeless in the snow [1, p. 38].

The law which is studied but no longer practiced is the gate to justice [2, p. 815].

Until a new and coherent ontology of potentiality (beyond the steps that have been made in this direction by Spinoza, Schelling, Nietzsche, and Heidegger) has replaced the ontology founded on the primacy of actuality and its relation to potentiality, a political theory freed from the aporias of sovereignty remains unthinkable [3, p. 44].

2 The Failure of Societal Respect

We wish to acknowledge and pay our respects to the First Nations PeoplesFootnote 1 of the Australian continent, waters, and skies, and their Elders—past, present, and emerging—and acknowledge the rich cultural and intrinsic connections they have to their respective Country’s,Footnote 2 their lands, waters, oceans, skies, stars, forests, and animals, upon which we have carefully tread and are entrusted with responsibilities. In particular, we wish to acknowledge and pay our respects to the Wadawurrung Peoples and their Elders [4,5,6]—past, present, and emerging. We also recognise and acknowledge the contributions and interests of other First Nations Peoples and their Elders—past, present, and emerging—across Australia’s lands, waters and skies.

Somewhere, sometime when European and Chinese explorers traversed the seas and ‘accidently’ came across the Australian continent, they felt it appropriate to scour the surface of this landscape with their insignias whilst desperately looking for potable water and sustenance. Those ‘savages’ who were chanced upon were deemed relics of an uneducated, unscientific, and uncivilized suite of dark-skinned individuals who had no sense of habitation and decorum, let alone a language to which these explorers could derive linguistic navigation from. Such could be, was, and continues to be far from the truth today. Terra nullius was a British real-estate appropriation venture dreamt up to usurp the perceived ‘semi-sedentary’ nomads from what was over 60,000 years of highly complex societal structures, nuanced relationships with environments, rich ethnomedicinal and ethnobotanical cultures Country-specific, of multiple nations and communities woven together into a tapestry that respected these lands and waters and partook of the ‘art and science’ of true sustainability long before Brundtland penned that now capitalism-washed term in Our Common Future [7].

Thus, the Uluru Statement from the Heart symbolically states, in part:

Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago.

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown.

How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years?

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are aliened from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness. [sic.] [8].

3 Prolegomena to a Double Refusal

How does one deal with the lived reality today of the debauched commons? Is not one of the best options to fashion an affront to the various and diverse versions of a debauched commons? And, if yes, what form would such an affront take?

There are numerous options, yet the most salient is to remove all conceptions of ownership and replace them with stewardship. What that might mean includes escaping the capitalization and commodification of academic and cultural knowledge, with the proposed affront actually an only apparent return to pre-modern, pre-capitalist forms of appropriation and expropriation. As ‘apparent return’, the backward motion would secretly be a forward motion—an escape route for forms of knowledge that were never and are never fully actionable when they are also locked up inside of institutional biases and cultural agendas that prop up the (mis)fortunes of abject capitalization. Modernity itself seems to be guilty of something here, insofar as its terms of engagement for subjects and citizens are largely based on abstractions and categorical absurdities. Senses of time, alone, as in most forms of historical inquiry, are totally self-serving. The imposition of these key terms of engagement around the world has also provided post-colonial insurrections significant ‘fire power’ toward overturning them [9].

It is more or less axiomatic today that any proposition for the support for research in academic circles (inclusive of publication opportunities) or for development, presentation, and dissemination in and/or across the cultural commons automatically includes subtle forms of indoctrination or conformity to the rules and edicts of the various gatekeepers. This protects the debauched knowledge commons from actual forms of radical or retrospective intervention, while also lending a quirky radical-chic edge to academia and the artworld when/if scholar or artist (or artist-scholar) bends the arc of their project toward meeting the various litmus tests imposed by what can only be called academic and art-world platforms. For, the critique of platform culture today (the turbo-capitalist entities everyone loves to loath while nonetheless servicing by using the platforms loathed) is also highly applicable to forms of cultural production (in Pierre Bourdieu’s sense) that endlessly circle the two main engines of cultural production—the servicing of Capital or the servicing of careers, with the latter reducible to symbolic capital, which today is, increasingly, shambolic capital, requiring endless updating, spinning, re-positioning, and re-calibration.

Thus, the game that is always afoot is to renounce ‘rights’, even as Capital wishes for everyone to chase rights, and then to cede them to Capital. The primary swerve here, in the Epicurean/Lucretian sense, where nothing would ever happen if atoms did not suddenly veer off in a new direction versus continuing to fall through space/time in a purely one-dimensional mechanical manner, is to renounce rights and then fashion a means to prevent those rights renounced from being assumed by others [10].Footnote 3 This is the ‘Franciscan chord’ that echoes through all past, present, and future forms of avant-garde and agit-prop agitation and refusal. If today ‘refusal’ is the new radical-chic posture in the art-academic industrial complex, any actual refusal will also be the negation of that negation, in the Hegelian sense, but also in the ultimate, nearly Nietzschean sense that there is always a doubled ‘Yes’ hiding behind every doubled ‘No’.

It is curious, then, to find First Nations Peoples almost everywhere forced onto the backfoot and defending their intellectual and cultural property—their lores [11].Footnote 4 In the first instance, it involves reclaiming land stolen from them by colonization over centuries, if not millennia. In the second instance, it involves their attempts to ring-fence anything that is at risk of being appropriated by anyone ‘outside’ of the ring fence. This includes fundamentals of place, place-making, stewardship, and indefinable categories of ways of seeing and interacting with the worlds they have thus proscribed. The great irony is that most such peoples never had a concept of ownership, and that today being on the back foot (on the defense) means taking up a position that is somewhat antithetical to their worldview. Yet … the position is the equivalent of what attracts the outsider in the first place—it is a type of Romantic archaic or anarchic remainder that serves as a temporal antidote for all that ails the First World. First Nations Peoples and the First World Peoples’ are engaged in a somewhat elegant dance, although it is also often an inelegant dance, given persistent colonialist and post-colonialist attitude problems, which suggest that the ambiguous term ‘(in)elegant’ is a better means of accessing what is at play.

To force First Nations Peoples to claim rights is not the same thing as forcing them to reclaim rights. The first truth is that there is no actual or literal reclamation involved. The (in)elegant dance is proceeding on terms dictated by the First World, defined here as the global-capitalist machine effectively still managed from former colonial powers. What then are the possible means available for moving beyond this socio-cultural political stalemate—an unnecessary danse macabre? It is most likely that the only means of providing an answer is to actually create an actual alternative as prototype escape route, engaging with what is always hidden today in the various postures attached to terms such as appropriation, expropriation, re-appropriation, and re-expropriation—all indicative of a classic vicious circle. What would such an escape route from this vicious circle look like?

A good start would be for First World Peoples’ to enter into a First Nations Peoples’ Country in, for example, Australia and pay attention to and honor what are essentially ineffable and indefinable realms of intangible heritage [12]. This requires removing our Western-tinted lenses (and sunglasses) and casting aside some 1,000 years of blinkered religio-educational doctrines and cultural protocols, and re-thinking our appropriation of Commons.

Ironically, intangible heritage continues to be a Western-coined and Western-dominated theoretical and practical realm challenging academia and practitioners alike. While the latter perceives its preeminence within definitions within our Western cultural heritage regimes, including at the international level, it is a concept that from a First Nations Peoples’ perspective is unresolved and absurd. To these Peoples’, intangible heritage is inseparable from tangible heritage. Both are intertwined within an intricate tapestry that is their ‘home’ landscape that in Australia is termed ‘Country’ [11].

Country is place, spirit, atemporal, possesses meanings, and it is hugely composed of a multiplicity of values that talk of humanity, custodianship, ancestors, responsibility, truth, lore, and spirit [4].

Current international and national charters, declarations, and conventions are nervous of this realm, and heavily colonized contemporary nations are scared of its implications if legally recognised. Contemporary legal adventures into terra nullius,Footnote 5 native title, Mabo [12], Uluru from the Heart [8] and Juukan Gorge [13] bear continuing witness to this in Australia. Intangible heritage is in many respects yet another abstraction, and its imposition is notably quite often linked to cultural tourism. Similar to the academic fashion of cultural memory, intangible heritage leads to subtle forms of commodification and, more dangerously, mollification. In the case of mollification it throws a veil over past practices of commodification and usurpation.

The Juukan Gorge caves destruction in north-western Australia again shines a spotlight upon Australia’s fraught care of First Nations Peoples’Footnote 6 heritage, whether tangible and or intangible [14,15,16,17]. As the editor of The Age wrote:

… in May last year [2020], Rio Tinto dynamited the 46,000-year-old Juukan Gorge rock shelter in Western Australia as part of the expansion of an iron ore mine. While most Australians may not have heard of the sacred site before its demolition, Juukan Gorge’s significance cannot be overstated, offering a snapshot of Australia’s past that goes significantly beyond any post-colonial structure or place. In 2014, an archaeologist found grinding and pounding stones and a 28,000-year-old tool made from bone, each one the oldest example of these technologies known in Australia. …

The destruction of the site triggered global anger and plunged Australia’s second-largest miner into crisis. While apologies were made, an uprising of Rio Tinto’s biggest shareholders in Australia and Britain forced the resignation of its chief executive … and two of his deputies …

For all the apologies and resignations, the real damage is to the First Nations People[s] who have lost a site of enormous significance [18].

At Juukan the simple principle of ‘Ask First’ was thrown aside [19]. Juukan Gorge, the Uluru Statement from the Heart [8], and the Australian High Court’s Mabo decision [12], all stand as First Nations’ precedents in Australia as to the way Western governments and corporations have metaphysically, legally, physically, intellectually, biologically, and/or environmentally transformed the living cultural heritage and psyche of Australia’s First Nations Peoples and their respective Country.

There is an implicit ‘divide and conquer’ algorithm occurring here because there is one dominant law-maker (the Commonwealth of Australia) and over 250 First Nations Peoples communities/corporations (Registered Native Title Bodies Corporate; RNTBCs) in Australia. There is also the necessity of all of the latter having to conform to the Western legal and corporate restrictions of the Native Title Act 1993 (Cth) [20] and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) [21], both being obvious acts of cultural disempowerment—that is, both are documents that Australia’s First Nations Peoples were never consulted upon as to their drafting and formulation.

Developed over a passage of some 100,000 years, at the least, this living cultural heritage has been met with serial destruction, death, extinction, erasure, and disrespect, representing a total abdication on the part of the established powers of any moral, ethical, and cultural or social responsibility [22]. Key definitional points in the above paragraphs are ‘living cultural heritage’, ‘past present future’, ‘tangible heritage’ and particularly ‘intangible heritage’.

Rio Tinto has since stated:

A breach of our values: In allowing the destruction of the Juukan Gorge rock shelters to occur, we fell far short of our values as a company and breached the trust placed in us by the Traditional Owners of the lands on which we operate. It is our collective responsibility to ensure that the destruction of a site of such exceptional cultural significance never happens again, to earn back the trust that has been lost, and to re-establish our leadership in communities and social performance [23].

The complexity of navigating intangible cultural heritage for First Nations Peoples’ living cultural heritage in Australia is rife with complex multiplicities of logic, significances, meanings, histories, temporal challenges, layers, and values [24]. Histories, values, and significances are codewords in all Western-authored charters, declarations, and conventions linked to cultural heritage, and they possess the safe textual codewords of recent Western (European) culture where word, meaning, value, and story were immortalized in books, poems, paintings, stained glass, and sculpture pieces, as static pieces of knowledge or truth beholden to the date of their physical crafting and today serving as precedents of that proverbial ‘now’ haunting cultural production.

Dynamic pieces of knowledge are not possible in this intellectual construct, nor is a point in time that possesses ‘past present future’ all at the same time, and nor is the notion that one (place) word in a First Nations’ language possesses a library of information and multiple histories. For example, look at Fig. 1. Try to see the ancestors, the dreaming line, the separate male and female significant ceremonial sites, the place name ‘signs’, the some 40,000 years of living cultural heritage ‘history’, the directional markers of exchange trails and songlines, the Latham’s Snipe (Gallinago hardwickii) flocks resting and chattering on their commute between AinuFootnote 7 and Wadawurrung Country’s, the upper level circling flight of Bundjil (Wedge-tailed Eagle; Aquila audax),Footnote 8 the wet sclerophyll forests of some 20,000 years ago and contemporary the whisperings of Cumbungi (Typha domingensis) and Common Reed (Phragmites australis), the wing-flutter of the significant Australian Sacred Ibis (Threskiornis molucca) in speaking of animal stories of which the Critically Endangered-listed Orange-bellied Parrot (Neophema chrysogaster) is discretely hiding from our view, the lethargic magical voices of the River Red Gums (Eucalyptus camaldulensis) in the winds, or the thought that we are standing on the edge of a primary dune with our backs to Nerm/Port Phillip Bay (only 2000 years old) [25] and that the waters behind possess equally portions of values of the view in front of us which is what the Hooded Plovers (Thinornis rubricollis rubricollis) are screaming at us about. Thus, you start to appreciate that you are struggling to see all this information in this image [4, 26].

Fig. 1
figure 1

Source: David Jones

Find the Intangible Heritage. An image of Wurdi Youang (You Yangs) from the Ramsar-listed Western Treatment Plant wetlands.

Full size image

Perhaps, at the least, and on a good day, we can almost see and feel this complex weaving of life forms and implicit narrativity. But we are looking nonetheless with Western-contrived, tinted lenses. And we are blinkered by the shortsightedness of textually biased and bibliophiled Western education and science. This is not simply a flat grassy wetlands landscape, with a series of Devonian-era, granitic monadnocks in the background, with the foreground now enveloped within a Ramsar gazettal [27], but a living landscape in the eyes and mindsets of the Wadawurrung People that possesses ‘past present future’ meanings and values [5]. This landscape resonates at a level that we are barely capable of conceiving. It is of (national) Country-level significance to the Wadawurrung People. It is comparable to the way that the Gunditjmara People perceive their recently World Heritage-elevated Budj Bim Cultural Landscape [28], or the way the Wadawurrung People view Anakie Youang and their recent legal battle to save this hill that sits at the intersection of several significant intangible stories and places [29, 30].

Such a description and landscape appreciation does not fit into UNESCO’s World Heritage List criteria [31, 32], nor in their Convention for the Safeguarding the Intangible Cultural Heritage [33], nor comfortably within the highly respected The Burra Charter [34]—but it resonates in part with the Declaration of the Right of Indigenous Peoples [35], the Victorian Aboriginal Heritage Act 2006 [36], the ‘Aotearoa Charter’ [37], and Te Aranga [38, 39], albeit that the Declaration is an oversight policy and the Act is dependent upon application, evidence, and approval by Western eyes.

Budj Bim escaped these definitional and governance regime constructs and strategically applied its nomination to the physically tangible, archaeologically-validated heritage to evidence its inscription coalescing around one discrete cultural story that casts a graduated veil across the deeper values, meanings, and significance the Gunditjmara People hold to that tract of their Country [28]. That is their story and one that they alone must tell, if they want to, in the same way that when on Yawuru (in the Broome locality) [40] or Murujuga (in the Pilbara) Country’s [41] , it is their respective tangible and intangible living cultural heritage and theirs to speak of, if and only if they wish to [42].

Aboriginal and Torres Strait Islander communities were the First [sovereign] Nations of the Australian continent and its adjacent islands, and they possessed it under their own laws and customs respectively per Country. This their ancestors did, according to the reckoning of their Culture, from the Creation, according to their common lore (not law) from ‘time immemorial’, and according to contemporary science ‘more than 60,000 years ago’.

This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown [sic.] [8].

As echoed in the above extract from the Uluru Statement from the Heart [8], First Nation Peoples’ ancestral ties are central to First Nations Peoples’ communities in Australia using their knowledge for looking after their land and sea Country. Their knowledge is current, relevant, dynamic, and adaptable. They use it today, as they did in the past, to look after Country our way, their way.

4 The ‘Back Foot’ + Biopolitics

The conundrums of First Nations Peoples’ living (tangible/intangible) cultural heritage, at least today, when its assimilation to Western values continues without the overt theft associated with past practices, may be addressed through an elaboration of what passes as resistance to power and how such resistance is almost always to be premiated upon establishing a threshold that defines any and all subsequent rules of engagement with sovereign power.

If we maintain the separation between empirical and transcendental planes, we end up with a rather different image. If the state of exception always remains empirical and does not enter the quasi-transcendental realm, in which bare life functions as the presupposition of positive forms, the two concepts can never form an articulation, even if one postulates their movement towards each other. The vectors in question might well have opposite directions but, belonging to different planes, they remain antiparallel and do not intersect. Sovereign power may ceaselessly presuppose bare life but cannot actually produce it and remains resigned to regulating a plurality of positive forms of life. By stripping life of its form it can only succeed in demonstrating that this form was there to begin with and some of it may even survive the effort of denuding […] Sovereign power has no access to life as such, because there is no such thing as sovereign power ‘as such’: there are only ever particular forms of power grappling with all kinds of forms of life except for bare life, which cannot itself enter the series of forms that it enables [42, p. 14].

With Giorgio Agamben’s ‘two vectors’ there is a realm set aside where the command-and-control mechanisms of power are incapable of exerting any direct or indirect influence. This posits a metaphysics of sorts that is also generally argued as an ontological reserve that pre-exists cultural and social praxis—benign or otherwise. Might we not detect here, in a highly metaphysical or philosophical manner, much that we refuse to see in arguments regarding rights—native, natural, and otherwise?

Through a mapping of this schism between power and bare life back on to extant or emergent worlds, a form-of-life emerges where this realm is the founding principle for resistance and its stewardship requires vigilance of an inordinate nature. For those who argue against Agamben’s privileging of inoperativity, there is an implied censure of all forms of life that do not rise to this level of resistance, as if any such posture also becomes, by default, moralistic. The caesura noted ‘between worlds’ suggests that a conscious effort must be made to maintain boundaries, inclusive of the boundary between form-of-life and what supports it.

In none of these confrontations does power attain a hold upon life as such or bare life, which is the only reason why all these forms of power can be and frequently are resisted. This resistance does not consist in obstinately holding onto a particular form or affirming the formlessness of life but retains the potentiality for transformation from within whatever form one happens to dwell in [42, p. 15].

Life can appear ‘in its free and intact form’ only if there is a caesura between it and a variety of forms of power. Only when it is inaccessible to the inclusion into the apparatuses of power as a negative foundation, can the transcendental principle of bare life continue to generate myriad forms of life, none of which are reducible to what made them possible [42, p. 16].

All of the various arguments around the concept of ‘bare life’, and whether it is given a positive or negative form, then imply an exit. Yet, the exit is subject to an evidentiary expedient depending upon which point of leveraging bare life is exerted. Political praxis, in terms of activism, clearly implies that the exit is towards the polis, and that engagement, direct action or indirect action, in political or socio-political agitation is superior to philosophy and metaphysics as such. Therefore, and by reduction, there is no ‘as such’ for political praxis—it is already a form of constructing goals and of serial efforts as the constitution of a telos for action, whereas the exit inferred by inoperativity and ‘inaction’ connotes an ethos and telos that is effectively inscribed within a sacred realm set aside from all political engagement. Is it not possible that this disengagement might be, under the right conditions, the most radical political position possible?

In a sense, it is through the abdication of one set of rights that another set appears or re-appears. For First Nations Peoples to have to fight on the same slippery slope that they have been inhabiting for centuries, despite it being partly cleared of the most egregious crimes, is, in terms of Agamben’s critique of bare life and biopower, yet another absurdist undertaking. Resistance to yet another round of theft might then require vacating the tenets of the socio-culturally determined rules cultural heritage and cultural studies have imposed. The necessary exit strategy, then, would require various levels of refusal of further abstractions in service to the commodifying of their generational intangible and/or tangible heritage.

It is in the interstices of operativity and inoperativity that the biopolitical dance with power begins a not-inelegant riposte to all objections to transcendentals hidden in everyday resistance to the apparatuses of socio-culturally determined subjective states and their noteworthy antitheses as found in processes of de-subjectification and re-subjectification. The proverbial back foot that First Nations Peoples are often forced upon, in merely defending their last rights and rites, is, in fact, an elective dance with power and with regimes of conformity and/or the shifting definitions of what constitutes engagement, for or against apparatuses—and for or against the privileges of power-sharing [49, p. 5, 43,44,45,46,47].

What happens when we now separate the means from the end and expose its mediality freed from any relation to it? Does not this freedom from any external end suggest that this means now has its end in itself? Agamben insists that gesture cannot be ‘conceived as end in itself’, which is the only reason why ‘in gesture, each member, once liberated from its functional relation to an end—organic or social—can for the first time explore, sound out and show forth all the possibilities of which it is capable, without ever exhausting them’ [49, p. 6, 48].

Agamben uses ‘gesture’ as an elusive archetype of ‘posture’ and ‘imposture’. It tends to signify an elemental datum by which the indeterminate may be privileged.

Here it is also possible to say that the indeterminate closely parallels the intangible of ‘intangible heritage’. The indeterminate borders on the immemorial and has its origins in linguistic theory. It is only half contingent or expressive. It retains something of the reserve function noted above of the realm from whence action may proceed as potentiality without permitting that realm to be accessed through a ‘back door’ built into power relations and regimes of biopolitical control.

Thus, the caesura acts as uncrossable hinterland, between action and ‘no action’, between rights and ‘no rights’—both ‘no action’ and ‘no rights’ only made effective or consubstantial through their relation to the continuum that nonetheless is neither contiguous in form nor fully effective as traversed terrain. It would seem to signal the itinerarium mentis that may only be undertaken ‘with eyes closed’.

Is this not a version of cultural ‘deep time’ or ‘dreamtime’? Both terms may be Western anthropological contrivances, but both also signal something that escapes historicity proper and all of the various biases embedded in historicism and similar intellectualist misadventures.

Agamben treats gestural performance as primary and nonderivative, itself offering an example for political practice to emulate. Politics and theatre thus exchange places and what was resigned to imitation becomes the model to be imitated. This displacement corresponds to what Agamben has analyzed as the logic of parody, a relocation of an object or a practice to a new, unconventional or unsuitable context, which would deactivate its force and render it inoperative. Parody takes up a preexisting model or concept and transforms it from something serious into something comic, leaving some formal elements intact but also adding new incongruous or ridiculous ones. In this manner, Arendt’s ‘potential space,’ in which human beings reveal and distinguish themselves by words and deeds, is recast as a pantomime theatre, where these words and deeds are exhibited as gestures, in which what is rendered inoperative is less the ‘work,’ which was never there to begin with, than the very actuality of the action itself. […] Agamben persistently affirms means over ends, potentiality over actuality in order to suspend what is for him an endless pursuit of ends that resigns us to responsibility and guilt [49, p. 11, 50].

‘Telos + Ethos’ (as a set) comes home to roost—over and over again. End and purpose. Their meeting occurs through the re-registration of what has been stolen with a new, non-reified sense of a commons, even if that term, too, is a Western contrivance. Inoperativity becomes the meeting point where they are alchemically fused into one secretive operative nothing. Perhaps this is the secret status of ‘no rights’ as a path to other rights. The status of ‘nothing’ reveals the nihilist traces Agamben has inherited across the arc of his astonishing critique of biopolitics. The rules of negative theology combined with negative dialectics fall away, anyway—fortunately. What is revealed is the potentiality of the refusal as a cipher (albeit only a ‘roadmap’).

Inoperativity is not inert; on the contrary, it allows the very potentiality that has manifested itself in the act to appear. It is not potentiality that is deactivated in inoperativity but only the aims and modalities into which its exercise has been inscribed and separated. And it is this potentiality that can now become the organ of a new possible use [51, p. 11].

Heritage and the so-called cultural commons are suffused with varieties of debauchery. The absurdity of First Nations Peoples’ having to play by the rules of such games becomes obvious when the political machinations are exposed as strange, extra-legal, oftimes moralistic maneuvers associated with commodifying what remains of a common good [52].

5 Sovereignty, Pseudo-sovereignty and ‘White-wash’

When non-First Nations anthropologist Deborah Bird Rose penned the oft-quoted definition of ‘Country’, in Nourishing Terrains, when explaining Australian Aboriginal views of landscape and wilderness for the Australian Heritage Commission, as follows, it set in train an alternate narrative in Australia’s academic and practitioner discourses about Australia’s landscape, as seen through the eyes of its First Nations Peoples’. Rose’s definition resonates today across many Australian cultural-landscape discourses:

Country is a place that gives and receives life. Not just imagined or represented, it is lived in and lived with. ... People talk about country in the same way that they would talk about a person: they speak to country, sing to country, visit country, worry about country, feel sorry for country, and long for country. People say that country knows, hears, smells, takes notice, takes care, is sorry or happy. Country is not a generalised or undifferentiated type of place, such as one might indicate with terms like ‘spending a day in the country’ or ‘going up the country’. Rather, country is a living entity with a yesterday, today and tomorrow, with a consciousness, and a will toward life. Because of this richness, country is home, and peace; nourishment for body, mind, and spirit; heart’s ease [53, p. 7].

To these Peoples, one cannot separate the tangible from the intangible, and—more importantly—both intertwine humans as an equal participant actor and not as one that subjugates landscape whether terra nullius or in systems of categorization. The clues of this rest in the recent Juukan Gorge debacle in Australia [54, 55], and the tensions of First Nations’ self-determination in Australia from First Nations Peoples’ perspectives.

Yet neither the Western words ‘intangible’, ‘heritage’, ‘cultural’, ‘landscape’, and ‘authenticity’, nor the term ‘cultural landscapes’, and thus the cultural heritage conventions and charters that embody them, fit comfortably within this construct, from First Nations’ perspectives, because such words and narratives were never in their vocabularies and value systems. They also lack both an applicability and temporality that is past, present, and future (‘past present future’), and not simply past present, as it is discussed in Western discourses. The First Nations’ verb tenses are utterly telltale and mostly unassimilable to Western language games. One of the few places they appear in the West is in theology—foremost negative theology and its refusal to privilege ‘history’ and its absurdist abstractions.

As an example, ‘authenticity’ resides in the continuity of construction practice and its materials. Or, as defined in UNESCO’s Nara Document on Authenticity, that “authenticity is an essential element in defining, assessing, and monitoring cultural heritage” [56]. This definition arises from a conference to which no First Nations Peoples were invited. Neither did they participate in the drafting of this international charter [57].

In contrast, Australia’s First Nations Peoples talk about adaptation of technique, materiality, and form arising from their deep-time longevity of Country residency irrespective of climate-change science, because they observe that they have watched the Australian continent change markedly in its terrestrial vegetation communities and weather patterns as well as its geological profile over millennia.

Thus, Wadawurrung Elder Corrina Eccles explains:

Our creation story and songlines are all connected, Country is a living entity. We can close our eyes and hear our language from our Country being spoken by our birds and all things around us. We can open our eyes and see our stories and connection, we can walk barefoot and feel our Mother Earth. We can traditionally burn Country for it to heal and renourish. Our cultural structures cared for our Country for thousands of years. We as Wadawurrung People will continue to advocate, care and walk together for our future generations and all people living and visiting our Country, ‘Wadawurrung Country’ [58, p. 3].

The challenge is how we accommodate values held by Australia’s First Nations—or should we? Should there be a new definitional category altogether that merges or connects the World Heritage Convention criteria with the Convention for the Safeguarding of the Intangible Cultural Heritage [33].

Additionally, both internationally and in Australia’s case, does the A Way Forward: Final report into the destruction of Indigenous heritage sites at Juukan Gorge [55] offer ‘a way forward’ [59], or is it simply too hard and Australia has to again await yet another High Court determination to force the Commonwealth’s hand, while UNESCO plays ‘catch up’ to Australia’s innovations?

6 The Dark Side of the Commons

Central to this dark parable is that Western agendas regarding intellectual property rights and immaterial cultures seek to control, prescribe, define, categorise, and delimit any nuanced reading of how First Nations Peoples’ views worldwide are perceived. Thus, languages, protocols, and forms of neoliberal-capitalist exploitation of the knowledge commons (oddly inclusive of UN charters and academic PC culture) have ‘historically’—as a logical-positivist perversion of the very concept of ‘past, present, and future’ as coterminous—sought to ring-fence or commodify First Nations Peoples’ lived traditions and values.

This danse macabre includes: language definitions, or attempts to place oral language traditions into phonetically transcribable English such that it is publishable and, thereby, copyrightable; struggles with an array of capitalist, Marxist, socialist, and laissez-faire notions and definitions of society (as embedded in socio-cultural critique); and circular and mostly pointless arguments regarding ownership, heritage, truth, and knowledge. These struggles all generally devolve to controlling and enslaving First Nations Peoples’ definitions, values, and views on behalf of Capital and renascent and revanchist forms of Empire.

Perhaps as a salve to the conscience of the West, it is permissible to say that the very concept of ‘the West’ is also an abstraction. This does not, however, absolve the West of general and specific malfeasance, both at home and abroad. Additionally, ‘universality’ is not necessarily the plague that post-colonial studies in academia has claimed it is. And it is also not reducible to yet another crime of the Enlightenment. A quest, as described above, to rediscover the value of inoperativity as refuge, is effectively a universalist undertaking for the dispossessed versus for the overlords—and that refuge is to be found everywhere and anywhere everything has not already been bought and sold 1,000 times over. What should be obvious is that academia and capital are often in cahoots—i.e., odd bedfellows, and especially in the culture industries—and that neoliberalism runs like a river through discourses today, destabilizing everything in sight and much that is out of sight. The goal is to destabilize and control—or, to divide and re-conquer. Thus, the very idea of the ‘back foot’ is a construction, per Agamben and others, that may be oddly privileged. Perhaps, in and out of time, the best response is to simply turn and walk away—to seek refuge, however temporarily, before re-engaging in battle. To be caught permanently in the danse macabre may actually be the goal that Capital has set for anyone with the temerity to object to the capitalist agenda.