First Nations Women: Law, Power, Story

For the greater part of our shared history, the voices of Aboriginal and Torres Strait Islander women were absent from scholarship as understood by the Australian colony. Those who wrote about our grandmothers, mothers and aunties viewed them through broken lenses that reflected only the pall of stereotypes. Black women were represented through various stereotypes that included the licentious jezebel and the docile servant. Yet Aboriginal and Torres Strait Islander women have never been the submissive prey of settler colonialism. Resistance has been manifest in diplomacy, litigation, refusal, the withholding of labour, activism and writing. It is within the latter tradition that this special issue of the Australian Feminist Law Journal falls.

In 1964, Oodgeroo Noonuccal of Minjerribah became the first Aboriginal woman to publish a book with a mainstream publisher. Her collection of poems, We are Going¹ brought into stark relief the painful legacies of colonisation. Oodgeroo Noonucal was at the vanguard of the campaign for the ‘Yes’ vote in the 1967 referendum, and would remain a staunch advocate for Indigenous people for the rest of her life. Among the generation of Black women who followed her were those who broke through the thickened and opaque glass ceiling of the Academy, suffering wounds in the process. We acknowledge the debt of gratitude owed by each one of us who has since cut our feet following in the footsteps of these warrior women.

The works included in this special issue are written by First Nations women scholars from a diversity of cultural backgrounds and disciplinary expertise. But a common thread runs through each article, and that is, an overwhelming desire to speak truth to power — power so often mediated through law.

Even in compiling this special issue, the law that was brought here made its power known. Associate Professor Chelsea Bond wrote two articles for this journal. The first — Cannibals, Animals and Criminals — was refused publication because of an assessment of legal risk made by AFLJ administrators. The second article Associate Professor Bond wrote is Talkin’ Down to the Black Woman.² It accounts the white solidarity and complicity in flagging racial critiques as a risk. Bond writes:

As a Black woman and senior scholar writing about race, I know too well the risks associated with it, legally and politically in this place, but this would have to be one of the most sophisticated intellectual takes on ‘Fuck off we’re full’ I’ve heard, at least in my opinion. And this was despite my scholarship being of the highest academic standard, and there being no doubts in regards to the facts and evidence I had produced. The Australian Feminist Law Journal Editorial team, in my opinion, has taken the position that to publish academic work that implies and/or evidences individual racist behaviour or thinking is defamatory and therefore unpublishable.

In coming to grips with how defamation law may address imputations of racism, we have been assisted by one of Australia’s leading experts: Professor David Rolph. In Defamation, Race and Racism,³ Professor Rolph provides an erudite and accessible introduction to Australian defamation law as it pertains to allegations concerning race and racism. Professor Rolph concludes:

Allegations of racism are undoubtedly capable of being defamatory. They are increasingly being pleaded in cases in Australia. This is understandable, given heightened concern about, and public discussion of, issues of race and racism in Australia. Such debates are to be encouraged. However, given the relative strictness of Australia’s defamation laws, they may be unduly inhibited or those engaging in them risk expensive, protracted litigation. It is not always possible to have a discussion about such issues without it touching upon the conduct of identifiable individuals. It is still the case in Australia that plaintiffs find it easier to establish that they have been defamed than it is for defendants to establish a defence, and this applies equally to allegations of racism.

This violent matrix between stories, how we evaluate them as First Nations feminist scholars, and how we are undermined in our speaking of law and all that it entails is an enduring theme in the papers of this journal. Distinguished Professor Larissa Behrendt extends our view of authoritative speaking on settler law in her article, Stories and Words, Advocacy and Social Justice,⁴ respectfully taking stories directly from Aboriginal women about child removal on their face as both speaking out against racist child protection jurisprudence and as its own jurisprudence of First Nations childhood wellbeing. Behrendt writes:

A framework of self-determination means not speaking on behalf of people – even as an advocate – but to create the environment and conditions for those who have been silenced to speak for themselves so their stories can change the world.

How, then, do we do something like this as a broader First Nations feminist polity in how we fictionalise settler law and its applications? Dr Crystal McKinnon offers us in The lives behind the statistics: Policing Practices in Aboriginal Literature⁵ a frank and multifaceted analysis of how Indigenous young adult fiction explores our young peoples’ embodied knowledge of legal power. How, McKinnon asks, do particular young adult texts represent the experiential arc of state power on Indigenous young people and offer unique insight to their readers about racialised policing practices, beyond statistics?

Stories and anecdotes contained within books like Njunjul resist these policing practices by unmasking the horrors and revealing the normalisation of violence against Aboriginal people. If Aboriginal kids read books like this it will undoubtedly help them with their fight and give them knowledge to arm them against the inevitable negative police encounter. Their parents may have likely given them some strategies and guidance too. Even with all of this knowledge and strategies for defence, the likelihood of police initiating an interaction with Aboriginal children are high.

Fiction around law and justice itself has a complex network of powerful actors to consider, Dr Nicole Watson reveals to us in her article Indigenous Crime Fiction and the Trope of Reclaiming Country.⁶ Drawing from seminal texts of First Nations crime fiction, Watson considers Country as both a guiding character and driving ethos of moral action — rooting disorder and order, victimisation and perpetration, discovery and disguise, trauma and resilience firmly in Country, dispossession and presence. Watson concludes —

In Indigenous crime fiction, the bonds between the people and Country are often harmed by forced removals, but they are not severed. In order to solve the crime and achieve personal growth, the protagonist must make the journey home. Even when it is not possible for the detectives to physically return to Country, they find a way to reimagine and breathe life into such connections.

From the role of Country in fictionalised legal storytelling to the storytelling about Country in a real legal setting, Dr Virginia Marshall explores the creation of proprietary personalities in settler law. In Removing the veil from the ‘rights of nature’⁷ Marshall proposes a way of distinguishing property from personality in the recognition of Country, and instead suggests a model of empowerment and obligations of First Nations people in caring for Country.

The notion of legally separating Indigenous peoples through the legal concept of the rights of nature and legal personhood is an anathema to Indigenous law and culture. The answer to inadequate or poorly performing government policies and law is not to retreat to legal personhood – to separate the rivers, the creeks and the mountains or national parks from Indigenous peoples.

In this issue, legal personality is not just a matter of novel construction that we either shape or resist. Dr Stephanie Gilbert takes critical attention towards how Indigenous identity is constructed in law to give flesh to the idea that First Nations people are definable in settler states in terms of what can be acquired from them and what ends they can be disposed towards. At the very core of this, Gilbert argues in The Treadmill of Identity,⁸ is the construction of Indigenous identity by legislators and courts who are inattentive to how and why they create Indigenous subjects (as individuals and writ large), and what they ask of an Indigenous public when they are forced to use them to navigate settler law and policy. Gilbert suggests:

by actively drawing on considerations of political/legal definitions from within and without, Indigenous Australians might challenge their exclusion from definitions of modernity and other definition-based moves aimed towards our extinction, while setting clearly the terms for our self-definition and ongoing cultural existence.

For so much of our shared history Indigenous women toiled in white homes, cooking, cleaning and rearing the children of their employers. To this day, the voices of such women remain largely invisible to the colonial record. In her article, Whitewash-Brainwash: An Archival-Poetic Labour Story,⁹ Dr Natalie Harkin highlights the junctures between policies of child removal, institutionalisation and domestic service. Dr Harkin responds to this regime of control that kept generations of women in her own family in servitude, with poetry that honours their resilience:

The only way for me to shift and transform the archive-box was to write poetry and weave my way out; an embodied reckoning with history’s record in an attempt to better understand my family’s place in a broader history of colonialism. As contemporary agents of memory, we can re-signify, assert and re-insert our family stories, beyond symbols of servitude and subjection, and privilege the voices of our ancestors.

In common with Dr Harkin, two other scholars have contributed poetry to this special issue of the Australian Feminist Law Journal. In her piece, The Real ‘Skeleton of Principle’: Using Computational Poetry for Critical Indigenous Legal Scholarship,¹⁰ Alison Whittaker uses computational tools to extract the most frequent three word phrases contained in legal decisions whose impacts have been felt by Indigenous communities throughout Australia. Akin to cooking down the water from a sauce, Whittaker’s experimental poetry reduces law to its essence, revealing whose interests and authority are prioritised:

In some ways, the produced poems are absurd and obscure, making little sense except as a testament to the façade of technicality in Australian law that has long diverted and scorned Indigenous participation and perspectives. I think of it as a critical whiteness exercise in analyzing Australian forms of law and their intervention onto Indigenous bodies and Country.

In They said I could be a feminist,¹¹ the Wiradjuri poet and academic, Dr Jeanine Leane, reminds us of the dangers inherent in notions of a universal feminism. The price of a homogenous feminism is often paid by Indigenous women and those who belong to other marginalised communities, whose voices are invariably erased:

They said I could be a feminist if I didn’t talk

About blackness because that fragments

the movement and they said I could join

in if I believed in the oppression of all women

they said solidarity would protect me but I

still got asked why I walked out at night

Indigenous people have long understood that law is inextricably tied to colonisation, race and racism. But it is only in recent decades that critical race theory and whiteness studies have provided us (in formal scholarship housed in the academy, at least) with tools to make those connections visible. In the article, One-Punch Drunk: White Masculinities as a Property Right in New South Wales’ Assault Causing Death Law Reforms,¹² Alison Whittaker applies a critical whiteness lens over ‘one punch’ laws enacted throughout Australia in the first decade of the twenty-first century. She reveals that far from being race neutral, such laws preserve the proprietary claims of white males to public space and the exclusive use of violence within it:

A discourse of care and benevolence for white men has been used to extend their right to unfettered, unshared social space – and to punish those who infringe that proprietary right to safety. That narrative is familiar to Indigenous peoples in Australia – who were the ‘beasts’ and ‘savages’ driven from their own lands because of our threat to white safety on farmlands. In NSW’s reforms, the ‘beasts’ and ‘savages’ are invisible as racial subjects, instead are merely racially-implicit – but the virtue of young white men is so spotlighted that it throws a shadow of race that is not difficult to see. Protecting vulnerable white people through the lens of Australian law’s view of violence, who perpetrates and who is victimised by it, quickly becomes white protectionism (footnotes omitted).

Critical race theory not only enables us to reveal how law reproduces race and racism, it also provides tools to challenge dominant narratives that normalise the status quo. The latter relies heavily upon storytelling; a medium that has deep roots in Indigenous cultures. In Storytelling in Our Legal System: Healing for the Stolen Generations,¹³ Assistant Professor Narelle Bedford argues for greater engagement with legal storytelling, which could not only benefit Indigenous people, but also lead to a ‘more inclusive’ legal system:

Building on the successful tradition of legal storytelling in inquiries and commissions, it is argued that in Australia legal storytelling is capable of further utilization within the courts in formal litigation where individuals from marginalized groups are in dispute with the government or large institutions over contested historical events, as a means of humanizing the law and moving towards a more inclusive Australian justice system.

Today, the policies that gave rise to the Stolen Generations continue to find resonance in the spiraling number of Indigenous children in state care. In the article, My Journey into ‘Child Protection’ and Aboriginal Family Led Decision Making,¹⁴ Dr Hannah McGlade discusses the situation in Western Australia and reflects on her experiences with the Department of Child Protection (‘DCP’) as a relative carer. In spite of legislative enshrinement of the principle of Indigenous self-determination, Dr McGlade’s advocacy for the use of Aboriginal Family Led Decision Making (‘AFLDM’) was opposed by the DCP. Today, the DCP’s resistance to AFLDM continues in spite of growing pressure for reform:

The WA government and the DCP have been under increasing pressure from Aboriginal advocates and stakeholders to improve their substantive engagement with Aboriginal people, models and processes to allow more scope for family empowerment and cultural safety. The institutional culture of the organization has clearly been challenged as discriminatory. Although there have been some responses from the DCP to these concerns, it has not shifted or addressed what lies at the heart of the problem – the unwillingness to allow Aboriginal people and families to have decision making responsibility for children.

It is with a great sense of pride that we introduce you, the reader, to this special issue of the Australian Feminist Law Journal on Indigenous writing on law and justice. As the world is challenged, moved and transformed by the Black Lives Matter movement, it is an auspicious time to create new spaces for Black women’s voices in the Academy. Hear them, contemplate their stories and reflect on their analysis, and begin to see the world differently. See what we cut our feet for.

Notes

1 Oodgeroo Noonuccal, We are Going: Poems (Jacaranda Press 1964).

2 Chelsea Bond, ‘Talkin’ Down to the Black Woman’ (2019) 45(2) Australian Feminist Law Journal.

3 David Rolph, ‘Defamation, Race and Racism’ (2019) 45(2) Australian Feminist Law Journal.

4 Larissa Behrendt, ‘Stories and Words, Advocacy and Social Justice’ (2019) 45(2) Australian Feminist Law Journal.

5 Crystal McKinnon, ‘The Lives Behind the Statistics: Policing Practices in Aboriginal Literature’ (2019) 45(2) Australian Feminist Law Journal.

6 Nicole Watson, ‘Indigenous Crime Fiction and the Trope of Reclaiming Country’ (2019) 45(2) Australian Feminist Law Journal.

7 Virginia Marshall, ‘Removing the Veil from the “Rights of Nature”’ (2019) 45(2) Australian Feminist Law Journal.

8 Stephanie Gilbert, ‘The Treadmill of Identity: Treading Water, Paddling like a Duck but still in the Same Pond’ (2019) 45(2) Australian Feminist Law Journal.

9 Natalie Harkin, ‘Whitewash-Brainwash: An Archival-Poetic Labour Story’ (2019) 45(2) Australian Feminist Law Journal.

10 Alison Whittaker, ‘The Real “Skeleton of Principle”: Using Computational Poetry for Critical Indigenous Legal Scholarship’ (2019) 45(2) Australian Feminist Law Journal.

11 Jeanine Leane, ‘They Said I Could be a Feminist’ (2019) 45(2) Australian Feminist Law Journal.

12 Alison Whittaker, ‘One-Punch Drunk: White Masculinities as a Property Right in New South Wales’ Assault Causing Death Law Reforms’ (2019) 45(2) Australian Feminist Law Journal.

13 Narelle Bedford, ‘Storytelling in Our Legal System: Healing for the Stolen Generations’ (2019) 45(2) Australian Feminist Law Journal.

14 Hannah McGlade, ‘My Journey into “Child Protection” and Aboriginal Family Led Decision Making’ (2019) 45(2) Australian Feminist Law Journal.