Indigenous Law Bulletin
By Irene Watson
Aboriginal laws are based on the songs of creation, while the coloniser’s law is legitimised by the act of state doctrine. When the two ways speak to each other what is this process we engage with? Power in creation – power over creation. In this dynamic, where is the law and is there a possibility of co-existence between the two ways? I think there is, but first there must be recognition of Aboriginal law and its continuing life in the community of Australia.
Power over creation grows as the song law is heard less across the country. What then is this thing called ‘rights’? Is it something which is negotiated between the cracks of power and the light of creation?
From my perspective as an indigenous woman, born into the nightmare of an unrecognised genocide, born of ancestors who never consented to the imposed colonial legal order, I have a different view of law from the ‘mainstream’ perspective. That is, the law is alive in the land and the song and while the song since the time of colonisation has not always been ‘allowed’ to be sung, the song and its law survives as it sings from within. And this is the unrecognised law, the one they said was a terra nullius, the one they still refuse to acknowledge even after the small recognition given to Aboriginal law by the High Court in Mabo [No 2].
Many Aboriginal people are still resisting the violation of Aboriginal laws and the imposition of an alien legal system. My ancestors never signed away our ancient laws or ceded sovereignty. Our ancient laws are not extinguishable. They were not created by humans and they cannot be extinguished by them, through whatever processes they devise. It is not that simple. The old people know the law and its onerous obligations. Obligations which hundreds of Aboriginal peoples still carry today.
Even if it were possible from an Aboriginal perspective to lawfully extinguish our relationship and obligations to ‘law’, under international laws we have the ‘right’ to give or withhold our consent to the assumed change of status and identity. The instructions to Captain Cook also declared that colonisation required the free and informed consent of the natives, but the natives never consented.
The issue of parental consent in the removal of Aboriginal children was recently discussed in the Federal Court decision of Cubillo v Commonwealth (‘Cubillo’). The court decided that the removal of Lorna Cubillo and Peter Gunner from their Aboriginal families was lawful under s 6 of the Aboriginals Ordinance 1911 (NT) because it was done in the interests of the child. Justice O’Louglin added, in relation to Mr Gunner, that his mother had given her consent, and evidence of consent was ‘the mother's thumbprint on a form of request that asked that Peter be taken to St Mary's and given a western education.’ He decided this even though he accepted that Mr Gunner had been a victim of sexual assault at St Mary’s, concluding that it did not justify a finding that the Director of Native Affairs had removed Mr Gunner from his family against the wishes of his mother.
What are the lessons we can draw from Cubillo? Perhaps it is a warning: ‘don’t sign or thumbprint anything’. Does this decision offer further warnings about current issues confronting Aboriginal communities? Consider, for example, Indigenous Land Usage Agreements under the Native Title Act 1993 (Cth) (the ‘NTA’). To what are Aboriginal people actually consenting, when they enter into such agreements, which extinguish native title? The ceding of Aboriginal sovereignty, and our ties to the land. What will future generations learn from these signed or thumprinted agreements and will judges of the future interpret these agreements to mean that the natives have given their consent, as in Cubillo But how free and informed and without duress have these processes been?
Against the idea of Aboriginal people having a ‘right’ to consent, I believe no one has the law to extinguish Aboriginal law: it is non-extinguishable. Both the ideas of extinguishment and terra nullius are colonising myths. I have argued in other places that native title creates the illusion of recognition, as terra nullius created the fiction of non-existence.
While the illusion of recognition runs, we still live without the freedom of our culture, and economic and civil rights, taken for granted by most citizens of Australia, are yet to become the Aboriginal experience. We practise our culture in a straight jacket of accountability, and the lighting of ceremonial peace fires is met with the same mindset, which extinguishes ‘native title’.
We don’t have the freedom from genocide to live on the lands of our ancestors, and is it law or rights, which will give us freedom? We struggle from the impact of powerful political and economic groups who mythologise native title as a source of land and other cultural and economic ‘rights’. The truth is, it won’t produce these rights and many of us are no longer waiting. But for those who do wait many questions remain unanswered. Will land and economic rights be re-gained through a self-determining process? Gained for how many and how long? When gained, do they have a use-by date when the state has power to remove them? What are the conditions? Do non-native title applicants have co-existing rights, or rights which outweigh and overpower? What is native title in relationship to our status as sovereign peoples?
Prior to the establishment in 1982 of the UN Working Group on Indigenous Peoples, indigenous peoples spoke on the urgent need to recognise minimum human rights standards as a necessary measure to prevent genocide. Since the establishment of the WGIP, indigenous peoples have participated in discussions and the drafting of indigenous rights in the Draft Declaration on the Rights of Indigenous Peoples. However during this process there has been little opportunity, away from the constant and consuming onslaught of the genocidal practices of states and multinational corporations, to reflect on what indigenous ‘rights’ mean. Haunani-Kay Trask has taken the time and made the following comments on rights in relation to indigenous Hawaiians and the United States:
Ideologically, “rights” talk is part of the larger, greatly obscured historical reality of American colonialism. ...by entering legalistic discussions wholly internal to the American system, Natives participate in their own mental colonization. Once indigenous peoples begin to use terms like language ‘rights’ and burial ‘rights’, they are moving away from their cultural universe, from the understanding that language and burial places come out of our ancestral association with our lands of origin. These indigenous, Native practices are not ‘rights’ which are given as the largesse of colonial governments. These practices are, instead, part of who we are, where we live, and how we feel. ...When Hawaiians begin to think otherwise, that is, to think in terms of ‘rights,’ the identification as ‘Americans’ is not far off.
Trask’s ideas, translated to native title rights, illustrate how the Aboriginal relationship to land and law can be reduced to a commodity or an economic unit and finally extinguishment. Our connections to land are about law and families. It is a spiritual relationship, which speaks of ancient traditional ways of life, ideas, which are in conflict with the state. Native title is seen as a right to take to the negotiating table, but who eats best from the native title industry and who waits in hunger for their native title?
Can we negotiate ‘rights’ when we have an unequal power to that of the state? How do we engage with their law when we have never consented to their stolen title of our lands? In discussing indigenous rights are we conceding or consenting to the authority of the colonial state? Or do we enter into the process of talking about rights because we have no choice except between a comfortable or a tortuous death of the indigenous world? Does the talk of rights help those who live in the belly of genocide, and do we have the right to survive genocide? In the recent federal court decision Nulyarimma v Thompson  FCA 1192; (1999) 165 ALR 621 (‘Nulyarimma’), Justices Wilcox and Whitlam decided the crime of genocide was not part of Australian law. However, the minority judgment of Justice Merkel held that the crime of genocide was an offence under the common law of Australia. All three judges, in considering the evidence of dispossession, bad health and mental trauma caused by dispossession, government policies of removal of children and policies of extinguishment of native title, decided these were not crimes of genocide even if the crime of genocide did form part of the common law. The High Court in Kruger v Cth (1997) (‘Kruger’), also decided that the forcible removal of children from their families and culture to such an extent that it destroyed the transmission of culture and caused serious harm to the group were not crimes of genocide. The decisions in Kruger and Cubillo both found the removal of children from their parents was in their own ‘best interests’.
Following Nulyarimma, the Anti-Genocide Bill 1999 was introduced but was referred to the Legal and Constitutional Affairs References Committee. The Committee, reporting in June 2000, recommended that the Commonwealth Parliament recognise the need for anti-genocide laws. But issues of concern to Aboriginal people were left unanswered such as, for example, proving the state had the intent to destroy the group. The report recommended that the courts should decide issues of intent, but proving intent, as we have learnt from Kruger and Nulyarrima is almost impossible. Another issue is the need for the crime of genocide to have retrospective effect. It is necessary to recognise past genocidal acts and also protect against future acts of genocide. A further issue is the definition of genocide and its exclusion of cultural genocide. The dispossession from our land and its destruction, the stripping of our culture and traditions and the imposition of an alien language and culture, are acts which cause the destruction of the group, however these acts are excluded from article 11 of the UN Convention on the Prevention and Punishment of the Crime of Genocide. Its exclusion allows states to commit acts against indigenous peoples which amount to genocide.
The Cobo report to the UN recommended that, where states deliberately discriminated against people for their refusal to abandon their culture, customs and traditions, the states were carrying out acts of ‘ethnocide’ or ‘cultural genocide’. Cobo saw genocide as a crime against the rights and dignity of a people. ‘It is a people’s cultural heritage that is the expression of that people and that is the true bond of the people’s unity.’ He wrote that the destruction of the land and the natural environment was:
..tantamount to ecocide which, with the consequent ethnocide, may ultimately result in a form of genocide. Preventing a group from preserving its traditional forms of life and bringing about the destruction of its culture based on those forms of life and the disappearance of the group as such, are serious violations of the basic rights and fundamental freedoms of the populations in question.
Another example of cultural genocide is the destruction of languages: throughout our colonial history the state has deliberately implemented polices to suppress the speaking of traditional languages. The old people were punished and the children removed to live in the spoken word of English. This is ‘linguistic genocide’.
Recent proposals for anti-genocide laws do not address the genocide of indigenous Australians, as they are really only a political gesture relating to foreign genocides, and the processes for dealing with the perpetrators of such genocides, who are living in Australia.
The current political climate indicates to me that any proposed anti genocide laws will be used to appease the majority’s fears that this country is without protection from genocide, and is most likely to become a process which creates the illusion of protection and rights.
On 4 August 2000 Justices Gummow, Hayne and Kirby in the High Court heard an application for leave to appeal in the Nulyarimma case. In refusing leave, Justice Gummow expressed no view as to whether or not the crime of genocide formed part of the common law of Australia. However he went on to say, ‘Even if it does, it has not been shown that the Full Court erred in deciding that it is not arguable that conduct alleged to constitute genocide falls within the definition of “genocide” in international law.’ The High Court also decided that parliamentary privilege prevented the court from inquiring into the proceedings of the Parliament. The applicants argued that the 10 Point Plan (the ‘Wik amendments’) provided for the 1998 amendments to the NTA and that these amendments amounted to a policy of genocide.
Where do we go, in relation to the protection of indigenous rights? Do we keep chipping away until we develop a watertight factual case which jumps the hurdle sufficiently to prove the intent of the state to commit acts of genocide? Or do we look elsewhere for a forum to hear our complaints? Or do we forget about rights and continue to affirm the law, our right to law as sovereign peoples. Will there be a dialogue with the state on the reality of Aboriginal law? The questions go on and the law of the land lives: in country, in song, and in the soul of the people it inhabits. The state may deny rights but it can’t kill the law, for it lives.
Irene Watson is a Tanganekald and meintangk mimini (woman) from the Coorong and lower south east of South Australia. She has published a number of articles on the continuing sovereignty of Aboriginal peoples and in 1999 completed a PhD in law. For many years she has worked towards the greater recognition of inherent Aboriginal rights.
  HCA 23; (1992) 175 CLR 1.
 FCA 1084 (Unreported, Fed Ct Aust, O’Loughlin J, 11 August 2000).
 Ibid, para 10.
 Ibid, para 11.
 Irene Watson, Raw Law (PhD thesis, University of Adelaide, 1999) ‘Power of the Muldarbi, the Road to its Demise’, 1998 11 Australian Feminist Law Journal, 28.
 The Aboriginal Tent Embassy in Canberra peace fire was extinguished during 1998, the ceremonial peace fire lit outside Government House in December 1999 was extinguished by the Adelaide City Council. The peace fire burning at the Aboriginal Tent Embassy, at Victoria Park Sydney is threatened with containment to a tin drum.
 The draft I refer to here is the document agreed to by the 11th session of the WGIP in 1993.
 Haunani-Kay Trask, From a Native Daughter: Colonialism and Sovereignty in Hawai, (Monroe: Common Courage Press, 1993) 112-113.
 The UN Convention on the Prevention and Punishment of the Crime of Genocide, article 11, lists acts of genocide as being, a) killing members of the group, b) causing serious bodily or mental harm to members of the group, c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, d) imposing measures intended to prevent births within the group, e) forcible transferring children of the group to another group. The crime of genocide involves the intent to destroy the group.
  FCA 1192; (1996) 165 ALR 621.
 Ibid, para 34.
  HCA 27; 146 ALR 126.
 Humanity Diminished: The Crime of Genocide, Senate Legal and Constitutional References Committee (June 2000) 52.
 Special Study of Racial Discrimination in the Political, Economic, Social and Cultural Spheres, United Nations publication, Sales No 71.X1V.2, paras 450, and also cited in the Cobo Report E/CN.4/Sub.2/1983/21/Add.3 17 June 1983:14, 16.
 Ibid 17-18.
 Wadjularbinna Nulyarimma, Isobell Coe, Billy Craigie and Robbie Thorpe v Thompson, Registry No C18 of 1999, http://www.austlii.edu.au.
 Ibid 16.
 Section 49 Commonwealth Constitution.
 Wik Peoples v Queensland (1996) 141 ALR 129.