sovereign spaces

26
Irene Watson Sovereign Spaces, Caring for Country, and the Homeless Position of Aboriginal Peoples The real land and law business has not been done. What I would like to point out to you is that in terms of our land and our law it needs to be understood, as my mother said, that we are custodians of this land. And when people say, “oh we lost this land or we lost that land,” we didn’t lose it anywhere. The land is still here and we still have the responsibility of being custo- dians of that land. The problem is that we haven’t been given the power in the non-Aboriginal legal system to fulfill that custodial right. Until our Elders in Council decide on these matters through their customary laws and until that consent, which Captain Cook was sup- posed to get, is properly given, then we still live under bad laws. —Dennis Walker, Aboriginal Tent Embassy, Canberra, April 9, 1995 I n this essay I reflect on Aboriginal worldviews and practices and the challenges posed to their survival by what Dennis Walker names bad laws. While different Aboriginal peoples belong to dif- ferent places, or ruwi, and Aboriginal worldviews are diverse,1 here I consider the possibility of decolonizing a space outside an Australian mono- culture that could become a home to Aboriginal worldviews. South Atlantic Quarterly 108:1, Winter 2009 doi 10.1215/00382876-2008-021 © 2008 Duke University Press

Upload: joemama17

Post on 21-Apr-2015

68 views

Category:

Documents


3 download

TRANSCRIPT

Page 1: Sovereign Spaces

Irene Watson

Sovereign Spaces, Caring for Country, and the Homeless Position of Aboriginal Peoples

The real land and law business has not been done. What I would like to point out to you is that in terms of our land and our law it needs to be understood, as my mother said, that we are custodians of this land. And when people say, “oh we lost this land or we lost that land,” we didn’t lose it anywhere. The land is still here and we still have the responsibility of being custo-dians of that land. The problem is that we haven’t been given the power in the non-Aboriginal legal system to fulfill that custodial right. Until our Elders in Council decide on these matters through their customary laws and until that consent, which Captain Cook was sup-posed to get, is properly given, then we still live under bad laws.—Dennis Walker, Aboriginal Tent Embassy, Canberra, April 9, 1995

In this essay I reflect on Aboriginal worldviews and practices and the challenges posed to their survival by what Dennis Walker names bad laws. While different Aboriginal peoples belong to dif-ferent places, or ruwi, and Aboriginal worldviews are diverse,1 here I consider the possibility of decolonizing a space outside an Australian mono-culture that could become a home to Aboriginal worldviews.

South Atlantic Quarterly 108:1, Winter 2009doi 10.1215/00382876-2008-021 © 2008 Duke University Press

Page 2: Sovereign Spaces

28 Irene Watson

Aboriginal worldviews struggle under an Australian colonialism that his-torically denied an Aboriginal presence and went on to build the Australian state’s foundation.2 Although that foundation is based on the myth of terra nullius,3 Aboriginal peoples were and still are present, carrying laws and cultures that governed every space of Australia. In the landmark native title case Mabo v. The State of Queensland,4 six of the seven judges held that the doctrine of terra nullius as applied to Australia was a fiction and should hold no continuing place in the common law of Australia. However, the histori-cal negation of an Aboriginal presence based on terra nullius continues, in spite of Mabo, while the illusion of an Aboriginal space being held by the “settled native” is allowed by the state.5 Australian law seems to have incor-porated and accommodated the settled native as “British subject” from the time of the invasion of Australia,6 but in reality Aboriginal peoples were treated as enemies and objects of British law. This, nevertheless, provoked questions about the efficacy of native title law: can it provide a real home for the sovereign Aboriginal subject? Who is the native subject, and what is its status, outside native title recognition? The untitled native? The “unsettled native,” left to unsettle the settled spaces of empire? The intention here is not to construct a stereotype by naming the unsettled native, but it is an attempt to communicate the ongoing Aboriginal resistance to con-form and fit into mainstream Australian culture, while unsettled natives occupy diminishing spaces on the fringes of empire. Those fringe spaces provide only a temporary home for Aboriginality, because the presence of the unsettled native is itself challenging the fiction of lawful foundation. Aboriginal resistance, which has no “legitimate” space for countering the power of the state, is given articulation only in illegitimate spaces such as by the prisons, the mental institutions, and the parklands of the state.

Accommodating and Incorporating the Native

By the 1930s, the Australian state and commonwealth governments were becoming aware that the social Darwinist expectations of the extinction of the natives were not being realized, and so they determined a path of assimilation for “their natives.”7 Ultimately, the aim was the same: assimi-lation was just as much a final solution as starvation and disease. However, an underlying irony existed. While in law Aboriginal peoples were consid-ered “British subjects” of a settled colony, colonial policies contained and separated Aboriginal peoples under the powers of the Aborigines acts from

Page 3: Sovereign Spaces

Sovereign Spaces, Caring for Country 29

mainstream Australian life. Prior to 1967, jurisdiction over the “Aboriginal race” was excluded from the Australian Commonwealth head of power.8 The states and the Northern Territory held jurisdiction over Aboriginal affairs until the 1967 amendments. From the earliest colonial period of Austra-lian history, the Aboriginal presence was met with a violence intended to remove peoples from their traditional lands. It was a time referred to by High Court of Australia justices Sir William Deane and Mary Gaudron in Mabo (No. 2) as “a national legacy of unutterable shame.”9 “Protectionist” policies and the Aborigines acts of the states and territory sanctioned the control of all aspects of Aboriginal life: the removal and dispossession of Aboriginal peoples from their lands, the further removal from Aboriginal reserve lands, the care and custody of Aboriginal children, discipline on the reserves, imprisonment, prohibition of the use of traditional languages, and prohibition of cultural and law practices.10 Nungas11 became institutionalized wards of the state, living under the direction of the Aboriginal protector.12 Our ancestors were known as “protected persons” rather than as Aboriginal peoples belonging to ruwi. In Australian law we were deemed “British subjects,” but in practice we were made invisible, doomed to annihilation and absorption. The colonies established reserves, and the roundup and placement of nungas into these institutions served to provide enclaves of cheap labor for the local agri-cultural industries. All movement of Aboriginal peoples onto and off of reserves was controlled, as our ruwi was increasingly invaded by pastoral-ists and farmers. At a time when slavery was no longer practiced within the boundaries of “law,” the Aborigines acts provided a labor force at the cost of subsistence rations, which replaced food sources formerly available to hunter-gatherer peoples. Nungas were placed on Aboriginal reserves without consideration being given to clan identity or language group; they were often removed from ruwi and relocated to other regions hun-dreds of kilometers away from traditional homelands. Under the Aborigi-nes acts, the separation of fair-skinned nungas from dark-skinned, divid-ing “half-castes” from “pure-blood” or “full-blood” natives, became policy. This policy intended to assimilate “half-castes” into white society, aiming at keeping groups separate, preferably unmixed and ranked hierarchically according to color; that is, those Aboriginal people who looked more white than others were assessed as being more easily assimilated into white Aus-tralia. “Half-caste” children were separated from their parents. Policies of child removal have since been referred to as acts of “genocide,”13 and the

Page 4: Sovereign Spaces

�0 Irene Watson

Australian government respectively apologized, saying “sorry” on February 12, 2008. While Australian law and policy variously pursued the extinction, segre-gation, protection, and assimilation of the settled native, the unsettled native continued to inhabit fringe spaces that the state would not recognize. This continues. The unsettled native is constantly occupying and reoccupying these sites. Aboriginal traditional homelands are one example; another is the Aboriginal Tent Embassy in Canberra, occupied by Aboriginal peoples since the 1970s as a space in which the dispossession of land rights and sov-ereignty are spoken back to the state. Similar Aboriginal sites of resistance have arisen across Australia at different times. Camp Sovereignty came into existence during the Melbourne 2006 Commonwealth Games, creating a space to speak on Aboriginal sovereignty and to demonstrate the long history of subjugation.14 The state denies the voices of the unsettled native because these voices put a lie to ideas of “white supremacy” and the illusion of the free, informed, and consenting native’s participation in the colonial project. This illusion has Aboriginal people positioned as participants of a process that would have our native histories and connections to home erased. In Mabo (No. 2), the High Court of Australia had the opportunity to review and heal the unlawful foundations of Australia and the myth of the settled native, but instead it affirmed the fiction of a lawful and peaceful settlement.15 Foundation was deemed an “act of state”; settlement was made lawful, and so were the theft and murder of land, children, culture, and law. And that would seem to have settled the issue. Yet there is in the contemporary Australian political discourse the persistent defense of the legitimacy for the (history of the) state’s founding.

The Unsettled Native: Making a Home for Aboriginal Worldviews?

State acts in support and justification of Australia’s colonial foundation have continued throughout colonial history, and earlier colonizing acts are reaffirmed through contemporary enactments. A recent reaffirmation is to be found in the Australian federal government’s amendments to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.).16 I am not suggesting that the original Aboriginal Land Rights (NT) Act provided a home for Aboriginality, where the sovereignty of Aboriginal laws and cul-tures determined the relationship of peoples to country. The Aboriginal

Page 5: Sovereign Spaces

Sovereign Spaces, Caring for Country �1

Land Rights (NT) Act is an accommodation of a concept of Aboriginality that Anglo-Australian law has determined and constructed.17 Aboriginal worldviews remain largely homeless in this process of accom-modation because of the failure to recognize Aboriginal sovereignty. For example, under the Aboriginal Land Rights (NT) Act, while land is collec-tively held by traditional owners, the Aboriginal interest remains subject to the national interest; there is no absolute right held by traditional owners to veto development under the act. The national interest has been stirred up following a moral panic that focused on the critical and violent life con-ditions in a number of remote Northern Territory Aboriginal communi-ties,18 culminating in the release of the Little Children Are Sacred report.19 The findings of the report noted high levels of sexual abuse of Aboriginal children. Soon after the report’s release on June 21, 2007, the federal gov-ernment, under Prime Minister John Howard, announced the Northern Territory National Emergency Response. It relied on the powers retained by the commonwealth over Aboriginal communities in the Northern Terri-tory and used the Australian Defence Force to enter Aboriginal communi-ties. It culminated in the so-called Northern Territory National Emergency Response Bill (Cth.) 2007. At this stage it is not clear what the policy of newly elected Prime Minister Kevin Rudd will be in relation to the NT National Emergency Response beyond his government’s disheartening support for military-led intervention and a promise to review the process in June 2008. True to its promise, the Rudd government announced on June 6, 2008, the appointment of a “14 member group dominated by pro-intervention think-ers to review its successes and failures.”20 It is clear that intervention will continue to be supported by the federal Rudd government. The NT National Emergency Response has effected a number of changes that are difficult to reconcile as appropriate social policy responses to the abuse and neglect of Aboriginal children. Taken up by the NT National Emer-gency Response, these changes are difficult to understand in the context of child abuse. The emergency intervention laws, while covering a broad area, have the most potential—in the following three measures—to negatively impact the continuity of Aboriginal relationships to land. The first mea-sure involves relaxing the Aboriginal permit system to prevent Aborigi-nal people from excluding or removing persons from “common areas” and access roads within their communities and lands.21 While the Liberal gov-ernment and the supporters of this provision argued that greater access to the media and other members of the public would reduce the remoteness

Page 6: Sovereign Spaces

�2 Irene Watson

and public scrutiny of these communities, many Aboriginal peoples argued that easier public access would open the lands to an increase in drug and alcohol runners and the supply of chemical substances. Drinking alcohol is restricted or prohibited in many communities. Second, the bill provides for five years the compulsory acquisition of approximately seventy Aboriginal townships and settlements in the Northern Territory. In these areas, five-year leases will be acquired by the commonwealth, using powers under sec-tion 51 (paragraph 31) of the Australian Constitution. Under Howard, the federal government stated that compulsory acquisition of townships was necessary to allow unfettered access to Aboriginal townships.22 However, both state and federal bureaucrats already had access to meet and negoti-ate with communities on a range of issues. Compulsory acquisition would not provide any greater benefit to the Aboriginal communities in the criti-cal areas of health, housing, and education.23 Third, the intervention laws prevent the consideration of customary law or the cultural background of an offender in sentencing or bail proceedings.24 Critics of the intervention laws have argued that these amendments are most likely to result in higher incarceration rates and also undermine the work of Aboriginal courts and their efforts at community involvement in a dialogue on culture and the increased involvement with community people and elders. The emergency response laws are now being challenged for contravening Australia’s obli-gations under international law and the International Convention on the Elimination of All Forms of Racial Discrimination.25 Central to the recommendations of the Little Children Are Sacred report is consultation with Aboriginal communities, but when the Howard gov-ernment announced the military-led intervention, there were no commu-nity discussions; the intervention was a unilateral decision of the federal state. Two days prior to the announcement of the NT National Emergency Response, Noel Pearson, director of the state- and federally funded Cape York Institute, also publicly announced the institute’s proposal for the imposition of measures in Cape York (North Queensland), including the withholding of welfare payments in situations in which children were not attending school and in which there had been notifications of child abuse.26 There have been widespread complaints from Aboriginal people over the intervention and the failure of state and federal governments to listen to Aboriginal peoples’ reports on the critical conditions in which many Aboriginal communities live and endure. Prior to the NT National Emergency Response, collective Aboriginal

Page 7: Sovereign Spaces

Sovereign Spaces, Caring for Country ��

ownership as accommodated by the Aboriginal Land Rights (NT) Act had always been open to challenge and was vulnerable to veto in the national interest. So, while the national interest could always be sure to prevail over the accommodation of Aboriginality in the Northern Territory, there was never a real threat to the colonialist/capitalist property paradigm. Neverthe-less, the Howard government moved to abandon this form of accommoda-tion. The debates that both followed and preceded these proposals led to the demonization of Aboriginal peoples’ laws and cultures and a negative cultural profiling of Aboriginal peoples as being inherently violent. This representation of Aboriginality arose during the extensive media coverage of the issue.27 The public was positioned to support the reversal of collective rights because the media represented these Aboriginal com-munities as violent and as sites where predatory Aboriginal men exploited young children and women. In fact, Aboriginal women and children living on remote communities often experienced chronic poverty, an explosion of substance abuse, and an absence of basic services such as education, health, and housing. While there were instances of violence, the complex historical causes were never debated. The Howard government increased pressure, intent on “reforming” the NT Aboriginal land rights system, and proposed amendments to the NT Land Rights Act that would reduce col-lective ownership of Aboriginal lands. The Howard government’s excuse for taking these measures, from my reading of events, was that collec-tively held lands controlled by Aboriginal peoples posed a disadvantage to Aboriginal progress and the safety of Aboriginal women and children. Prior to the release of the Little Children Are Sacred report, Minister for Aborigi-nal Affairs Mal Brough asserted before Parliament:

The appalling levels of violence and abuse in many of these communi-ties are a stark reminder of the failed policies of the past. The govern-ment has called for restoration of basic law and order in these town-ships. The right of safety for women and children is a threshold issue that will be the subject of a Commonwealth, state and territory sum-mit in the near future. . . . The bill provides for a new tenure system for townships on Aboriginal land that will allow individuals to have property rights. It is individual property rights that drive economic development. The days of the failed collective are over.28

Brough combines the claim of a “failed collective” and the presence of vio-lence in Aboriginal communities to suggest that the safety of Aboriginal

Page 8: Sovereign Spaces

�� Irene Watson

women and children is best secured through the privatization of Aborigi-nal land holdings. In this debate Aboriginal law and traditional roles and responsibilities for caring and belonging to country are transformed into the cause of community violence. The putative link between collectively held Aboriginal lands and violence became the main topic of public policy debate. In saying this, I am not unaware of the increasing number of Aboriginal communities in which issues of violence are of critical concern and the extent to which a community’s capacity to care for country has become difficult due to high levels of substance abuse, itself the result of decades of unresolved intergenerational trauma. The government’s shift to private property ownership of Aboriginal lands as the solution to impoverished living conditions is not only unrealistic but reeks of another agenda, par-ticularly as the subject Aboriginal lands are located in those parts of Aus-tralia richest in natural resources. It is also not clear how private property ownership would better position Aboriginal peoples to care for country. The intention was not just physical dispossession but also the stripping of power from communities. It would lead to the lack of capacity to care for country through an Aboriginal framework that engages Aboriginal laws and cultures that carry concepts of caring for country for future genera-tions. Decades of “sorry business” (grief and colonial trauma) are tied to the fact that colonialism, from the earliest pastoralism up to recent min-ing developments, agriculture, and urbanization, has inhibited Aboriginal people from protecting our country. The incapacity to care for country con-tributes to the cycles of Aboriginal trauma and loss. The point is that to represent collective ownership as part of the problem is unfounded and unsupported by any evidence. The possibility of Aboriginal sovereignty and self-determination as strategies for the future of Aboriginal communities is denied by the state: while they never actually existed in the space of the state, they are constructed as being part of past policy failures. Aboriginal sovereignty and self-determination have never been explored by the state and applied as policy. The term self-determination was used by the federal government from the 1970s to describe various initiatives, but a closer examination of those polices reveals their continuing colonial nature. For example, since its establishment, the Aboriginal Torres Strait Islander Commission (ATSIC) was promoted as an initiative in self-determination, and for a while, it did provide an element of independence, although more in the form of self-management of the state’s colonial policies than

Page 9: Sovereign Spaces

Sovereign Spaces, Caring for Country ��

autonomy.29 As a statutory body of the commonwealth government, ATSIC was tied to its purse strings and was rendered ineffective due to its limited powers over Aboriginal health, education, and housing. Further, its role and authority were increasingly diminished by the Howard government, which for more than a decade ignored numerous reports highlighting a growing crisis and neglect of essential services to Aboriginal communities across Australia. Eventually the government dismantled ATSIC and cited it as a failed policy in Aboriginal self-determination. The 2007 NT National Emergency Response was established to deal with a crisis that had been constructed as one of Aboriginal dysfunction and evidence of the impossi-bility of self-determination.30 At the same time as the intervention into Northern Territory Aborigi-nal communities was announced, Michael Meyers, president of the New York Civil Rights Coalition, traveled to Australia to address the Cape York Institute conference, “Strong Foundations: Rebuilding Social Norms in Indigenous Communities.”31 Meyers proclaimed: “Indigenous cultures are an antiquated concept in the 21st century: People have to move out of their ghettoised attitudes, get away from the idea that people belong in certain lands.”32 Commonwealth and Queensland government funding grants have been made available regularly to the Cape York Institute to develop the Cape York agenda and “Aboriginal policy,” which have provided a blue-print for some aspects of the emergency intervention in the Northern Ter-ritories. The Howard government readily endorsed them.33

Aboriginal Sovereign Spaces: Why

The Australian state has rarely if ever intended or had the political will to empower Aboriginal peoples’ laws and cultures. The statutory recognition of Aboriginal land rights is vulnerable to veto clauses that are invoked in the “national interest” or to statutory amendments such as those proposed by the Howard government. Australian property law and relationships to land are different from, if not in opposition to, Aboriginal understandings and relationships to country. The Mabo decision deemed Aboriginal rela-tionships as extinguishable and of the past; the possibility of continuity was displaced by erasure or a “washing away of the history of Aboriginal Australia.”34 Mabo provided the legislative framework for “native title” laws, which allow for traditional owners or native title holders (as deter-mined by the courts) to enter into negotiations relating to their ruwi. At

Page 10: Sovereign Spaces

�� Irene Watson

the same time, existing “native title” laws that have been “recognized” by the state are vulnerable to extinguishment. In recognizing Aboriginal title in Mabo, the High Court of Australia managed to assimilate Aboriginal laws and cultures into Australian property law but in doing so created a title that is more vulnerable than any other title to the power of the state to extinguish without compensation. I have argued elsewhere that Aboriginal laws and cultures have survived from ancient times, and while they might be deemed extinguished by Australian law, they do remain alive, if under duress.35 Aboriginal law cannot be extinguished by an alien legal system because Aboriginal law exists of its own being, just as it lived before the coming of Captain James Cook and survives in his wake. Aboriginal law is not dependent on Australian law from which to draw its life and existence; it remains alive within Aboriginal frameworks that exist outside of main-stream legal imaginings. What possibility exists for Aboriginal peoples to belong to and care for country and home, beyond the assimilationist agendas of the state? The Australian Commonwealth and its constituent states would assert that the empowerment of Aboriginal relationships to land is already provided for by statutory land rights.36 However, this is just a masquerade of recognition: the current capacity of Australian laws to provide land rights and empower Aboriginal peoples to care for country is weak, while the intention toward the continuing negation and erosion of an Aboriginal presence by the state is still more powerful. With the intention still aimed at the assimilation of Aboriginality, what happens to the land? Who will be the keeper of the languages of country, its songs, and its laws? Who will remain the unas-similated and unsettled native when the threat of the last song sung lies at our feet? And how might humanity walk the land if the singing stops? Will the possibility of an Aboriginal worldview of the now and the future be extinguished?37

Utopia: “No Place” or a “Good Place” for Aboriginal Worldviews?

A “good place,” full of law and spirit, was known in the land, languages, and stories of my ancestors as Kaldowinyeri38 and to other Aboriginal peoples by other names. It’s also called the Dreaming, in reference to an ever-present place of before, now, and the future, a place that we are constantly returned to. The law-way of nungas is not in the past; it is a way of life that is carried with great struggle into the present Kaldowinyeri, where we are met by the

Page 11: Sovereign Spaces

Sovereign Spaces, Caring for Country ��

ancestors, to begin all over again. But at the coming of Cook and the British we have also been afflicted by colonial traumas. The British deemed the old people “prehistoric.” The history of Australia was seen by them to begin with their coming; Aboriginal worldviews became known as mythical, pre-historic, and irrelevant. The Australian colony was seen as another new home for the accommodation, expansion, and decentering of European civilization. The displacement of the prehistoric native was seen as an inevi-table aspect of the process of history and “the march of God in the world,” marching to disappear the “prehistoric” unsettled native.39 Of course, there is not one tribe of Aborigines, or one landscape, but hundreds, and these share the waters and natural resources that are essen-tial to life. Before the coming of Cook, hundreds of different Aboriginal peoples occupied the land we now call Australia. Prime Minister Howard referred to Australians as comprising one tribe. In so doing, he both dem-onstrated his ignorance of Aboriginal history and failed to acknowledge the diversity among Aboriginal peoples’ cultures and laws that have been sung into relationship with the land.40 Aboriginal peoples hold a cultural and spiritual view of the world that embraces an ethic of caring for our homelands. In the beginning was the country of my peoples, the Coorong in South Australia, ruwi to the Tangane-kald people that was sung by the ancestors, who sang our beginnings, from Kaldowinyeri. This is a difficult concept to translate into the languages and thinking of non-Aboriginal peoples. The old people told of a moment when the law and its song stories were sung into the land. Our laws were born as were the ancestors—out of the land. Nungas believe that we are descended from beings of Kaldowinyeri and that they are our ngaitje (totems) and our spiritual attachment to the land. From our ngaitje, we learn about the inter-connectedness of life, that humanity is just a small part of life. To own the land as it is understood in a property law context is markedly different from the more complex Aboriginal relationship to ruwi. In West-ern capitalist thought, ruwi becomes property, a commodity that can be traded or sold. But how can you sell an aspect of your historical, ontological self ? In challenging the dominance of these concepts, Haunani-Kay Trask suggests, “When they wrote that we were superstitious, believing in the mana of nature and people, they meant that the West has long since lost a deep spiritual and cultural relationship to the earth.”41 The nunga relation-ship to ruwi was intimately known to traditional land owners. The bound-aries of ruwi were marked by bends in the creek or river, the rain shadow,

Page 12: Sovereign Spaces

�8 Irene Watson

trees, and rocks, as well as fabricated markers. While Aboriginal laws are specific to place and have a sense of boundary, they are boundaries unlike those constructed by Australian law, which have mapped state boundaries in straight lines across Aboriginal territories. Aboriginal song lines do not travel in straight lines to make absolute boundary areas between different peoples. Aboriginal songs have sung the law, and those laws and stories are held in the land to form the song lines that lie across the entirety of the Australian landscape. Some regions were shared areas, while others were restricted, requiring permission to travel across the land and thus avoid conflict. The land was known in song and sung to by the custodians. Rev-erend David Passi, one of the claimants in the Mabo decision, explains his relationship to country to the court: “It’s my father’s land, it’s my grand-father’s land, it’s my grandmother’s land. I’m related to it, which also gives me my identity.”42 The indigenous relationship with ruwi holds both obligations and rights. The relationship to land combines traditional ownership and custodian-ship and is difficult to translate. The term owner, for example, has a range of meanings across different Aboriginal cultures. In general, ownership is not viewed in relation to material goods but to other values: knowledge, a relationship, a problem, a dispute, a ceremony. I am reluctant to provide specific examples of Aboriginal relationships to ruwi, and in the past, I have avoided doing so because of the dangers of mistranslation, appropriation, and commodification. The complexity of providing examples of Aboriginal relationships is further due in part to the diversity of Aboriginal knowl-edges but also to the impact of colonization on the maintenance of Aborigi-nal frameworks. So in an attempt to avoid the construction of yet another Aboriginal stereotype, I offer a general example of an Aboriginal relation-ship to an indigenous plant that is invested with connections to land, to the Aboriginal knowledge of the medicinal properties among other known and unknown attributes. It is here that Aboriginal people are in ownership but also carry obligations to ensure the sustainability of the relationship for future generations. It is difficult to translate these ideas into a capital-ist framework that has fed on Aboriginal lands and natural resources for more than two hundred years and that has more recently begun to feast on the economic benefits derived from Aboriginal knowledge, whether in the form of art or the medicinal benefits of Aboriginal flora and fauna. As I stated above, the Aboriginal framework regarding Aboriginal law operates under the duress of colonialism. In general, Aboriginal law ownership is

Page 13: Sovereign Spaces

Sovereign Spaces, Caring for Country �9

not exclusive.43 It does not define the owned object as a commodity; instead, that relationship is the concern of a limited group of people who stand in a particular relationship to the owner and whose various responsibilities depend on that relationship. Each has a different responsibility or right. However, often these relationships are viewed as antiquated and progress blocking.44 Those that are “recognized” are Aboriginal relationships that can be assimilated and commodified. For example, the tourist industry cov-ets the exotic image of the native, which can be marketed and exploited, and some traditional Aboriginal practices are therefore allowed to “develop and profit” so long as there is no conflict with other potentially more lucra-tive developments. By contrast, Aboriginal spaces such as Sydney’s inner-city suburb of Redfern do not promote the image of the exotic Aboriginal and do not attract tourists. So when not performing as the exotic being, the unsettled native is removed from land (as in the case of Redfern) and is also further alienated by the market premium on “authentic” Aboriginal being, as we have seen in contemporary native title jurisprudence. The Redfern community and others like it are not protected, and Aboriginal housing is instead sold for large profits in the booming Sydney property market. The effect is to create a contemporary wave of dispossession. As Kathy Bowrey notes, one area that has produced significant legal dis-cussion about the accommodation of Aboriginal law is in the domain of intellectual property. However, intellectual property law reifies the exotic and special character of the indigenous, utilizing unique legal distinctions that work to promote and protect the commercial premium for “authen-tic” art, idealized as produced by “traditional” natives. The legal incorpo-ration of the indigenous as a special case of intellectual property rights is often justified in the name of showing respect for Aboriginal culture. How-ever, the terms of inclusion involve a settling of the native that reconciles Aboriginal art production with market logics that maximize the potential profits (and acclaim) to be had by the (usually) non-Aboriginal investors, gallery owners, auction houses, and state institutional collectors.45 Aboriginal law is the foundation for the recognition of all Aboriginal title in Australian law, in respect of land. Yet, while some of the negotiations relating to the lands of traditional owners involve developments, they are themselves breaches of Aboriginal law. Aboriginal law does not allow us to sell the land; we cannot sell our relative, our self, our being, or our identity. Kevin Buzzacott has raised the importance of land as a relationship over that of progress (and profit), arguing in a series of legal actions he has taken

Page 14: Sovereign Spaces

�0 Irene Watson

against the Roxby Downs uranium mine in South Australia that Aboriginal laws and ways of being are trampled.46 Sharon Venne raises a similar prob-lem regarding the authority of Aboriginal peoples in Canada and the power of the state in the treaty-making process: “We are not selling our land. We cannot sell our land. This land belongs to us. . . . We have a relationship with the land.”47 In Australia, Aboriginal peoples have never consented to the elimination of title under Aboriginal law; we are not in a position to consent to the annulment of Aboriginal law. The commodification of land sold and purchased is a concept alien to Aboriginal law and peoples’ rela-tionships to land. The old people had a deep understanding that while land is our home, it is our home because it is who we are; it is home to our songs and laws that lie in the land; it is our relative; it is our grandmother and grandfather. Our ancestors are alive in the land, and this is in accord with saying that to sell the land is akin to selling one’s own mother. Native title deals are part of the state’s most recent policy in the assimila-tion of Aboriginality into Australian law; native title is a process that more frequently results in a loss to Aboriginal traditional owners than in an advancement of Aboriginality. Under current Australian law, it is not pos-sible to maintain an Aboriginal relationship to country. This is most appar-ent to the peoples who have experienced dispossession since the British invasion. Situations that subject Aboriginal peoples’ land to development place a profound and urgent burden on the role of caring for country. For example, the current expansion of the world’s largest uranium mine at Roxby Downs in South Australia was approved by the state government. To process these minerals, BHP Billiton was legally allowed to draw large quantities of water from the Great Artesian Basin, the largest reservoir of underground water in Australia. Aboriginal peoples’ opposition to the state interest and the interests of a major corporation was blocked by the courts. The state, in approving the development, condones breaches of Aboriginal law (as well as breaches of safe and sane environmental policies). The Roxby Downs development is occurring in one of the driest regions in the world, and yet with a vast open-cut, on-site processing plant, it risks contamina-tion of the Great Artesian Basin.48 The Aboriginal relationship to the Roxby country is repudiated so profoundly that it seems impossible that it may reassert itself. In my country, the effects of global warming and the drying out of the longest rivers in Australia, those of the Murray-Darling Basin, have caused the drying up of the great Coorong wetlands. My own role of caretaker of the lands of my old people and ancestors is profoundly affected. We have never seen this before.

Page 15: Sovereign Spaces

Sovereign Spaces, Caring for Country �1

Dispossession and Caring for Country

Throughout colonial history, the theft of Aboriginal peoples’ land has been represented as a series of benevolent acts bringing the native into civility. Aboriginal people were considered barbarians. The rawness of Aboriginal song cycles and kinship relationships to country did not fit Western ideas of progress. William Stanner describes the Aboriginal relationship to home in the following terms: “The Aboriginal would speak of ‘earth’ and use the word in a richly symbolic way to mean his ‘shoulder’ or his ‘side.’ I have seen an Aborigine embrace the earth he walked on.”49 Aboriginal caring for the land is equivalent to caring for one’s own body; it is an act of self-preservation and self-protection, and it engages a deep knowledge of our interdependency. But the capacity for Aboriginal Australians to care for our country now is limited, even more than for Aboriginal communities and individuals to experience the privilege of good health and well-being. The ethic of caring for country encompasses a relationship to ruwi. The land is a relation: a mother, father, grandmother, grandfather. It is where we have trekked from in the past, what we stand on today, and that which allows us to connect with tomorrow. That is the dream or vision, a seem-ingly impossible ideal for the future. In terms strongly reminiscent of the situation in Australia, Canadian First Nation writer Harold Cardinal claims:

We have internalized or adopted, as First Nations or Aboriginal peoples, the colonial mindset of government bureaucrats, policy makers, and law makers. . . . Public policy was predicated on the assumption that public good would best be advanced by removing Crees and other First Nations peoples from their “wilderness habitations” and relocating them to places where they could be “isolated from their past” and pro-tected from “contamination,” from the influence of premature contact with “civilization.” They were to be “civilized and Christianized” in a carefully controlled and legally secured environment. These places were conceived as “half-way house” laboratories in which Crees and other First Nations peoples were to be sanitized, civilized, and Chris-tianized. The goal of Canadian public policy and law was that once the Crees and other First Nations peoples completed the transforma-tive process, they were to emerge into Canadian society, free from their wild and primitive past, inculcated with a sense of self-shame so strongly embedded that they would never again yearn for or seek to be associated with their former “savage” identities.50

Page 16: Sovereign Spaces

�2 Irene Watson

With similar intentions to Canadian policies, Australian public policy has impacted Aboriginal peoples’ connections to country, while driving the “civilizing mission” and exerting constant pressure to “fit in.” Many Aboriginal people struggle against those powers that seek to annihilate our obligations as caretakers of country. A long campaign by the Kupa Pita Kungka Tjuta senior Aboriginal women of northern South Australia worked to ensure that an important Seven Sisters site remained undamaged in the Billa Kallina region. The Seven Sisters is a significant story that crosses most areas of Australia, and traditional storytellers are responsible for passing on the story and caring for the places where the Seven Sisters traveled. Billa Kallina, one such place, was threatened by a federal government proposal to develop a nuclear waste repository site. The Kungkas successfully prevented the development of the site, although the same development is now proposed for Aboriginal lands in the Northern Territory.51 The nunga connection to ruwi comes from a place that lives inside the law, where the law is the land. Nungas revere and hold ruwi to be sacred, and this has resulted in profound differences between Aboriginal and non-Aboriginal attitudes to place, home, and the source of life. These dif-ferences lead to different outcomes: one leads speedily to environmental exploitation and the other to the possibility of sustainable territories. In a nunga view, the entire landscape is our sacred homeland. But in protecting the land, now we frequently have to choose between the threat of physical violence and incarceration. In R. v. Walker, Baizam Nunukul, also known as Dennis Walker of the Nunukul people, was arrested and charged for assault and discharging a firearm with intent to evade arrest.52 Walker was protect-ing an Aboriginal burial ground from being destroyed by the local council. His actions were fully supported by the elders, who argued for Walker’s right to uphold Bundjalung law in the protection of sacred sites. In the end, however, Walker was convicted, and a subsequent appeal was dismissed. There are few places where the indigenous relationship with and love of the land are respected and recognized because, as discussed, land is viewed by the dominant culture as a commodity. What the colonial state deems as recognition is the creation of zones of “protection” for some indigenous “groups.” The state constructs what is valued and protected, and where Aboriginal interests conflict with development proposals, Aboriginal inter-ests are rarely if ever recognized or protected. As a result, traditional owners are frequently in conflict with the state over “progress” and “development,”

Page 17: Sovereign Spaces

Sovereign Spaces, Caring for Country ��

which results in the destruction of land and Aboriginal peoples’ relation-ship to home and country. Here I am writing generally, and I acknowledge that Aboriginal peoples across Australia have attempted prolonged opposi-tion to destruction in their homelands, but this has been at a tragic cost and often without positive outcome. The Aboriginal and Torres Strait Islander Heritage Protection Act (1984) (Cth.) was enacted for the purpose of pro-tecting Aboriginal culture, and yet, in the matter of Kartinyeri v. Common-wealth, the majority judgment of the High Court held the Hindmarsh Island Bridge Act 1997 (Cth.) to be a valid amendment to the Aboriginal and Torres Strait Islander Heritage Protection Act.53 The High Court made this determination even though the Hindmarsh Island Bridge Act effected the damage of the Seven Sisters’ Dreaming place, when the bridge from mainland Goolwa to Hindmarsh Island in South Australia was built on top of the site. The Seven Sisters is a story that is shared by Aboriginal people across Australia. It connects the travels of the Seven Sisters, also known as the Pleiades, to Dreaming tracks or song lines that cross the Australian landscape. Those places visited by the Seven Sisters are significant to the law and culture of Aboriginal peoples. The Billa Kallina site is significant to the Seven Sisters, and so are the riverbed and waters between mainland Goolwa and Hindmarsh Island. Ngarrindjeri people were prevented from making further applications under the Aboriginal Heritage Act for the pro-tection of the site. The High Court in Kartinyeri held that the power of the commonwealth was not limited to legislating for the benefit of Aboriginal peoples, but could also legislate to the detriment of Aboriginal interests. While the Aboriginal and Torres Strait Islander Heritage Protection Act masquerades as a law of recognition and protection of significant Aborigi-nal places that are home to Aboriginal Dreaming sites, this same law justi-fies and makes lawful their destruction. The masquerade of recognition and protection of country can also be found in Australian native title law. Native title claimants are required to prove their authenticity, that is, that their laws existed at the time of colo-nization and have prevailed during colonization. In Mabo (No. 2), Justice Gerard Brennan states:

Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connection with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law

Page 18: Sovereign Spaces

�� Irene Watson

can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise. However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of tra-ditional customs, the foundation of native title has disappeared.54

Native title laws are recognized to exist where Aboriginal communities remain connected to law and culture as the courts construct and deem to have existed before the coming of Cook. But this process takes no account of the destructive impact of colonialism, and for those communities where language, traditional customs, and connections to homelands are deemed altered by the effects of colonialism, it affords no title. In those Aboriginal communities where native title claims have been successful, what is it that has been recognized? Native title is an attempt to assimilate Aboriginal laws and relationships to country into a Western property framework, but it is recognition within a framework incapable of adjusting to or includ-ing Aboriginal relationships to country. How could it be otherwise? Can a system of property law speak to an Aboriginal worldview that has no con-cept of land as property? In the assimilating process of native title recogni-tion, Aboriginal relationships to homelands are profoundly altered; as the “natives” are called to consent to land developments that might impact the future life and sustainability of their home, the native relationship to land risks annihilation. This risk occurs within a process of native title recogni-tion. So as the settled native becomes absorbed into the whiteness of the colonial project, perhaps it is the unsettled native that holds the possibility of surviving assimilation and absorption and the restoration of Aboriginal relationships to homelands. The unsettled native who fails to fit remains at the margins. My Tangane-kald ancestors who occupied this space were massacred, and their murders were justified under martial law for their failure to fit into the genocidal discourses of colonialism.55

Colonialist Views and Settled Spaces

As my ancestors walked over the land, they walked in the law. Today it is difficult to walk that law in a car park that lies on your ancestors’ graves or in a derelict and toxic mine site that has replaced ceremonial and gathering places where songs were sung across the land.

Page 19: Sovereign Spaces

Sovereign Spaces, Caring for Country ��

For more than two centuries prior to the High Court decision in Mabo (No. 2), terra nullius made invisible that which was different, disappearing unsettled natives to the fringes. But terra nullius having been overturned, this same court empowered the state to extinguish Aboriginal title. In Mabo (No. 2), Justice Brennan was careful to ensure that no radical departure was made from the existing law:

This Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. . . . Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country, it cannot do so where the departure would fracture what I have called the skeleton of principle. The Court is even more reluctant to depart from earlier decisions of its own. The peace and order of Australian society is built on the legal system. It can be modi-fied to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed.56

Aboriginal peoples who were homeless before Mabo (No. 2) remain that way. The colonial project continues the lie of lawful foundation based on a “skeletal framework” that “privileges white versions of history and legality.”57 Justice Brennan justified his reading of the law as being essen-tial to the “peace and order of Australian society,” but what is this peace founded on? Can a violent foundation ever grow peace and order? When we examine this skeleton of principle, we will discover a colonial violence that is layered on the broken vertebrae of the past. Alain Badiou’s reading of the poem “The Age” by Osip Mandelstam interrogates the twentieth or “beast” century. Badiou considers the skeletal structures of that century and asks what held it together. He concludes that even before the century had begun its spine had been cracked by butchery and the slaughter of mil-lions, even while the century thought of itself as the “beginning of a new age, as the infancy of true humanity, a promise.”58 For Aboriginal peoples, it was a time that picked up where the previous century had left off, a time of forced removal from land, laws, and cultures, and a time of “true humanity” promised only to those settled and stripped of Aboriginality and clothed in “civility.” Badiou writes of the century as being “haunted by the idea of a changing man, and the creation of a ‘new man,’ but in creating a ‘new man’ or a ‘new humanity’ it ‘always comes down to demanding that the old one be

Page 20: Sovereign Spaces

�� Irene Watson

destroyed.”59 He then asks: “What is to be done about this fact: that science knows how to make a new man? And since there is only one answer: profit will tell us what to do.”60 For Aboriginal Australia, this “new man” came to Australia early—he came with the First Fleet, in 1788, wearing the attire of the British military. For Aboriginal peoples, contact with the “new man” brought a change in relationships to country and ideas of relationships to land. Now we struggle with the ultimate consequences: climate change and river systems that struggle to survive in one of the most dried-out conti-nents on earth. It is the “new man” Badiou speaks of who will continue to occupy spaces emptied of an Aboriginal being. It is the unsettled native that will continue to resist, occupy, and expand fringe spaces.

Notes

I thank David Ellison for his comments on early drafts of this essay and also Kathy Bowrey for her helpful comments. 1 Ruwi means our traditional homelands. 2 Throughout this essay, I use the term state to identify the colonial relationship between

Aboriginal peoples and the repository of colonial power. The state sees only itself as “real.” The United Nations recognizes 192 states in the world, while the existence of thousands of First Nations peoples is excluded by the UN and its member states.

3 Terra nullius means a land that is uninhabited by peoples or, where inhabited by peoples, the state deemed they lived without laws and governance.

4 Mabo v. The State of Queensland (1992) 107 C.L.R. 1. Mabo overruled Milirrpum and Others v. Nabalco Pty. Ltd. and the Commonwealth of Australia (1971) 17 F.L.R. 141.

5 I constructed the notion of the “settled” unsettled native previously in “Settled and Unsettled Spaces: Are We Free to Roam?” in Sovereign Subjects: Indigenous Critical Engage-ment, ed. Aileen Moreton-Robinson (North Sydney: Allen and Unwin, 2007), 33–46. There I explored the idea of settled and unsettled spaces and Aboriginal connections to country that continue inside the one nation, Australia.

6 However, this position was not always clear to the colonials living in Australia due to a discussion on the conflict of interpretation between the British colonial Home Office and Justice Charles Cooper of the South Australian Supreme Court on the legal status of Aboriginal peoples during the 1840s Coorong massacre, in which Cooper argued the Milmenrura lived as enemies outside the settled boundaries of the colony of South Aus-tralia. This position was refuted by the Home Office in Britain. See S. D. Lendrum, “The Coorong Massacre: Martial Law and the Aborigines at First Settlement,” Adelaide Law Review 6.1 (1977): 26.

7 See the Royal Commission into Aboriginal Deaths in Custody, Final Report of the Royal Commission into Aboriginal Deaths in Custody, vol. 2 (Canberra: Australian Government Publishing Service, 1991), 510, for a historical account of policy shifts to assimilation.

8 Prior to the amendment of section 51, paragraph 26, by the Constitution Alteration (Aboriginals) 1967 (Cth.) deletion of “other than the aboriginal race in any State,” the

Page 21: Sovereign Spaces

Sovereign Spaces, Caring for Country ��

Commonwealth Parliament did not have the power to make laws for and about Aborigi-nal peoples. Further, prior to the repeal of section 127 of the Australian Constitution by the Constitution Alteration (Aboriginals) 1967, “aboriginal natives” were excluded from “reckoning the numbers of the people of the Commonwealth or of a State or other part of the Commonwealth.”

9 Mabo v. The State of Queensland (No. 2) (1992) 175 C.L.R. 1 at 50. A small part of that his-tory can be seen in the foundation of the colony of South Australia, in which the preamble to the South Australia Act, or Foundation Act (1834), described 300,000 square miles of Aboriginal lands as “waste and unoccupied.” In a token consideration of the native, the South Australian Waste Lands Act (1842) established sixty Aboriginal reserves to encour-age the “settling down” of natives into the farming practices of colonists. However, these reserve lands were revoked during the early colonial period because of their inhabitants’ failure to establish sustainable communities. It was never intended to secure their sus-tainability; this is evidenced from the colonial records of the time. Waste Lands Act 1842 (UK) 5 and 6 Victoria, C 36 of 1842, sections 3 and 5.

10 For some of the early state protectionist legislation, see the Aboriginals Protection and Restriction of the Sale of Opium Act (Qld.) 1897, sections 9, 11, and 13; Aborigines Protection Act (Vic.) 1886; Aborigines Act (Vic.) 1890; Aborigines Protection Act (WA) 1890; Aborigines Protection Act (NSW) 1909; Northern Territory Aboriginals Act (SA) 1910; and Aborigines Act (SA) 1911.

11 Nunga refers to an Aboriginal person and is used across the southern areas of South Australia.

12 Aborigines Act (SA) 1911, section 10, subsection 1. The Aboriginal protector became the legal guardian of all Aboriginal children until the age of twenty-one.

13 Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Sydney: Human Rights and Equal Opportunity Commission, 1994), 191, 234–39.

14 Irene Watson, “Aboriginal Sovereignties: Past, Present, and Future (Im)Possibilities,” in Our Patch: Enacting Australian Sovereignty Post-2001, ed. Suvendrini Perera (Perth: API Network, 2006), 26–27.

15 Mabo (No. 2) (1992) 175 C.L.R. 1. 16 Aboriginal Land Rights (Northern Territory) Amendment Bill (Cth.) 2006; and Aboriginal

Land Rights (Northern Territory) Amendment (Township Leasing) Bill (Cth.), 2007. 17 I use Aboriginality to include Aboriginal law, culture, and ways of knowing the world. 18 This moral panic was managed by Minister of Aboriginal Affairs Mal Brough, following

the May 2006 ABC Lateline Tony Jones interview with the Northern Territory Crown Prosecutor Nannette Rogers, who spoke of the rape of small Aboriginal children. The tabloid press assisted in raising the level of panic. Tony Jones, “Crown Prosecutor Speaks Out about Abuse in Central Australia,” ABC Lateline, May 15, 2006, www.abc.net.au/ lateline/content/2006/s1639127.htm (accessed June 30, 2008). But more than twenty years of reported violence in Aboriginal communities have been ignored. Among others, a recent report by Bonni Robertson was largely ignored by state and federal governments. Bonni Robertson, “Aboriginal and Torres Strait Islander Women’s Taskforce on Violence Report,” Australian Indigenous Law Reporter 20 (2000): 91, www.austlii.edu.au//cgi-bin/

Page 22: Sovereign Spaces

�8 Irene Watson

disp.pl/au/journals/AILR/2000/20.html?query=bonni%20robertson%20womens%20 taskforce%20on%20violence (accessed July 11, 2008). The issue of Aboriginal commu-nity violence became enlarged only when highlighted by the Howard government and the Lateline interview.

19 Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children Are Sacred (Darwin: Northern Territory Government, 2007).

20 Patricia Karvelas and Stuart Rintoul, “Critics Are Few on NT Review,” Weekend Australian, June 7–8, 2008.

21 Families, Community Services, and Indigenous Affairs Amendment Bill (Cth.), 2007, sched-ule 4, will amend the permit provisions under the NT Aboriginal Land Rights Act (Cth.) 1975. The Labor government has indicated that it would not support this amendment and would retain the current permit system.

22 Mal Brough, “Aboriginal Land Rights (Northern Territory) Amendment Bill 2006: Sec-ond Reading,” speech to the Parliament of Australia, Canberra, May 31, 2006, http:// parlinfoweb.aph.gov.au/piweb//view_document.aspx?TABLE=HANSARDR&ID=2582653 (accessed July 10, 2008).

23 National Emergency Response Bill, part 4. 24 National Emergency Response Bill, part 6, section 91. These provisions are further

explained in the “Explanatory Memorandum” in part 6: on July 14, 2006, the Council of Australian Governments (COAG) agreed that no customary law or cultural practice excuses, justifies, authorizes, requires, or lessens the seriousness of violence or sexual abuse. All jurisdictions agreed that their laws would reflect this, if necessary by future amendment. COAG also agreed to improve the effectiveness of bail provisions in provid-ing support and protection for victims and witnesses of violence and sexual abuse. The commonwealth implemented the COAG decision through the Crimes Amendment (Bail and Sentencing) Act 2006, which applies to bail and sentencing discretion in relation to commonwealth offenses. The Bail and Sentencing Act amended the Crimes Act 1914 (Cth.) to preclude consideration of customary law or cultural practice from sentencing discretion and bail hearings. The Bail and Sentencing Act also inserted provisions into the Crimes Act requiring the relevant authority to consider the potential impact on vic-tims and witnesses and, specifically, the potential impact on victims and witnesses in remote communities, when granting and imposing bail conditions for commonwealth offenses.

25 The challenge is taken pursuant to the Racial Discrimination Act (Cth.) 1975, section 132, and argued that by invoking the special measures provision in the act, the National Emergency Response Bill enables the exclusion of the operation of part 2 of the Racial Discrimination Act, so as to avoid a challenge. Similarly, the Native Title Act (Cth.) 1993 invoked the special measures provisions to avoid a challenge under the Racial Discrimi-nation Act. However, the Native Title Act was not challenged, for at the time it was popu-larly supported for being an act of reconciliation. This was even though the Native Title Act validated non-Aboriginal land titles that would have otherwise been claimable lands under the principles in Mabo. It is unlikely that the challenge to the intervention will be successful due to its being characterized as a human rights intervention. For further discussion on Mabo and native title, see Irene Watson, “Buried Alive,” Law and Critique 13.3 (2002): 253–69.

Page 23: Sovereign Spaces

Sovereign Spaces, Caring for Country �9

26 Peta Donald, “Pearson Calls for End to Passive Welfare,” ABC News, June 19, 2007, www .abc.net.au/pm/content/2007/s1956074.htm (accessed June 19, 2007).

27 I discuss the state’s construction and the media representation of Aboriginal violence in “Aboriginal Women’s Laws and Lives: How Might We Keep Growing the Law?” Australian Feminist Law Journal 26 (2007): 95–107.

28 Brough, “Aboriginal Land Rights.” 29 Aboriginal and Torres Strait Islander Commission Act 1989 (Cth.). 30 For further discussion on the illusion of Aboriginal self-determination, in particular the

governance of ATSIC, see Irene Watson, “Nungas in the Nineties,” in Majah: Indigenous Peoples and the Law, ed. Greta Bird, Gary Martin, and Jennifer Nielsen (Sydney: Federa-tion Press, 1996), 1–12.

31 Michael Meyers, “The Role of Identity in Minority Groups’ Success or Failure—The Pitfalls of Victimhood” (paper presented at the “Strong Foundations: Rebuilding Social Norms in Indigenous Communities” conference, Cairns, Queensland, June 25 and 26, 2007).

32 Cited by Tony Koch, “Get Parents Who Shield Abusers: Pearson,” Australian, June 26, 2007.

33 Education and Health Standing Committee, Initiatives in the Remote Indigenous Commu-nities of Cape York (Perth: Parliament of Western Australia, 2007), 55–61.

34 Mabo (No. 2) (1992) 175 C.L.R. 1 at 66. 35 Irene Watson, “Raw Law” (PhD diss., University of Adelaide, 1999). See also Moana Jack-

son, “Justice and Political Power: Reasserting Maori Legal Processes,” in Legal Plural-ism and the Colonial Legacy, ed. Kayleen M. Hazelhurst (Aldershot, UK: Avebury, 1995), 242–63.

36 Native Title Act (Cth.) 1993; Native Title Amendment Act (Cth.) 1998; Native Title (South Australia) Act 1994; Native Title (New South Wales) Act 1994; Validation (Native Title) Act (NT) 1994; Validation of Titles and Actions Amendment Act (NT) 1998; Native Title (Queens-land) Act 1993; Native Title (Queensland) State Provisions Act 1998; Native Title (Tasmania) Act 1994; Titles (Validation) and Native Title (Effect of Past Acts) Act (WA) 1995; Land Titles Validation Act (Vic.) 1994; Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.); Pitjantjatjara Land Rights Act (SA) 1981; Aboriginal Land Act (Qld.) 1991; and Torres Strait Islander Land Act (Qld.) 1991.

37 Mabo (No. 2) (1992) 175 C.L.R. 1 at 46, 111, and 195–96. 38 Kaldowinyeri was known to the Tanganekald and the Ngarrindjeri peoples as what is

now commonly referred to as the Dreaming, but it represents more than an idea of a Dreaming past: it speaks to the idea of the law-ways of Aboriginal peoples that is not of a dreamed past but of a continuing and living present time and space.

39 For a discussion on the impact of Hegel’s idea of progress into “statehood” and the exclu-sion of Aboriginal peoples from having any international subject status, see Irene Wat-son, “Internationalising, Humanising, and Diversifying: The One Nation State,” in Acti-vating Human Rights, ed. Elizabeth Porter and Baden Offord (Bern: Peter Lang, 2006), 251–65.

40 Watson, “Buried Alive.” Here I discuss the story of the frog to illustrate the power of diversity and the difference of Aboriginal collective and sovereign identities to that of the oneness of the state apparatus.

Page 24: Sovereign Spaces

�0 Irene Watson

41 Haunani-Kay Trask, From a Native Daughter: Colonialism and Sovereignty in Hawaii (Mon-roe, ME: Common Courage Press, 1993), 153.

42 Nonie Sharp, No Ordinary Judgement (Canberra: Aboriginal Studies Press, 1996), 164. 43 One of the challenges of modern property law is the political valorization of the impor-

tance of exclusive private property relations as a hallmark of progress, ignoring the reality that Western legal relations rarely measure up to the ideal of exclusive, bounded rights. See Robert Gordon, “Paradoxical Property,” in Early Modern Conceptions of Property, ed. John Brewer and Susan Staves (New York: Routledge, 1995), 105.

44 However, while these relationships can be seen to impede progress, Kathy Bowrey iden-tifies how these same antiquated relationships are also seen as comprising valuable “cul-tural property” and an important resource for indigenous development in the domain of intellectual property. For earlier developments of this argument, see Kathy Bowrey, “The Outer Limits of Copyright Law: Where Law Meets Philosophy and Culture,” Law and Critique 12.1 (2001): 75–98.

45 I am indebted to Kathy Bowrey for her comments and our conversations on what she refers to as the “puzzle of cultural property.” For further discussion on the connections to the “puzzle of cultural property,” see Kathy Bowrey, “Alternative Intellectual Property? Indigenous Protocols, Copyleft, and New Juridifications of Customary Practices,” Mac-quarie Law Journal 6 (2006): 65–95.

46 Attempts were made to prevent the continuing operations of the Roxby Downs devel-opment through the following legal proceedings: Kevin Buzzacott v. Robert Hill (1999) F.C.A. 639 (unreported); and Nulyarimma v. Thompson (1999) F.C.A. 1192. It was argued that the contemporary Roxby Downs development was genocidal. These actions were dismissed by the courts.

47 Sharon Venne, “Treaties Made in Good Faith,” in Natives and Settlers—Now and Then: Historical Issues and Current Perspectives on Treaties and Land Claims in Canada, ed. Paul W. DePasquale (Edmonton: University of Alberta Press, 2007), 7. On the ability of one legal system (such as Anglo-Australian law) to extinguish a foreign legal system (such as Aboriginal law), see Michael Detmold, “Law and Difference: Reflections on Mabo’s Case,” in Essays on the Mabo Decision (Sydney: Law Book Company, 1993), 39–47.

48 The Olympic Dam mining and processing operations currently draw up to 35 megaliters of water per day from the Great Artesian Basin; an additional 125 megaliters would be required for the expansion.

49 William Stanner, White Man Got No Dreaming: Essays, 1938–1973 (Canberra: Australian National University Press, 1979), 9.

50 Harold Cardinal, “Nation-Building as Process: Reflections of a Nihiyow (Cree),” in Natives and Settlers, 67–68.

51 While the South Australian government responded to the Kupa Pita Kungka Tjuta cam-paign to resist the development of a nuclear waste repository on the Seven Sisters site, the commonwealth continues its own campaign to locate a remote site for this develop-ment. As a result the Commonwealth Radioactive Waste Management Act (Cth.) was passed on December 5, 2005. Prior to this, in June 2005, three areas were nominated as potential sites for the dump, and in May 2006, Muckaty in the Northern Territory was formally nominated by the Northern Land Council (Aboriginal Land Council, constituted under the Aboriginal Land Rights Act (NT) 1976). The Aboriginal community at Muckaty

Page 25: Sovereign Spaces

Sovereign Spaces, Caring for Country �1

now comes under the Aboriginal Land Rights (NT) Amendment (Township Leasing) Act (Cth.) 2007. In September 2007, the Muckaty nomination was accepted by the Howard federal government, and at the time the Australian Labor Party was committed to repeal-ing the Commonwealth Radioactive Waste Management Act. However, Labor has said that there is still the possibility the Northern Territory will have a waste dump; the site is yet to become finalized.

52 R. v. Walker (1994) NSW Court of Criminal Appeal (unreported). 53 Kartinyeri v. the Commonwealth (1998) 195 C.L.R. 337. 54 Mabo (No. 2) (1992) 175 C.L.R. 1 at 66. 55 S. D. Lendrum, “The ‘Coorong Massacre’: Martial Law and the Aborigines at First Settle-

ment,” Adelaide Law Review 6.1 (1977): 26–43. This essay reviews early colonial law and the justification for the frontier violence against the Coorong peoples.

56 Mabo (No. 2) (1992) 107 C.L.R. 1 at 30. 57 See also Greta Bird, “Koori Cultural Heritage: Reclaiming the Past?” in Majah, 104. 58 Alain Badiou, The Century (Cambridge: Polity Press, 2007), 16–17. 59 Ibid., 8. 60 Ibid., 9.

Page 26: Sovereign Spaces