Aboriginal laws and colonial foundation^*

* An earlier version of this paper was presented at the Brisbane Law and Society Conference in December 2016.

ABSTRACT

First Nations Peoples of this continent we now call Australia experienced the violence of colonialism for longer than the coloniser and now the Australian state is prepared to admit. A more than 150-year frontier war has been passed off as peaceful settlement. This was a lie. Terra nullius was another lie, if terra nullius was the truth why was there a frontier war. This war enabled the invasion and colonisation of Aboriginal lands. While ‘justice’ remains overdue, this paper examines how it is the Australian state has mythologised the rejection of terra nullius. And at the same time normalising the Australian colonial project. This paper considers how it is we might move beyond the colonial matrix of impossibility and ‘skeletal foundation.’

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Irene Watson belongs to the Tanganekald, Meintangk – Bunganditj First Nations Peoples and their territories include the Coorong and the south-east of South Australia. Watson has published extensively in law and Indigenous Knowledges and in 2015 she published Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015) and more recently Indigenous Peoples as Subjects in International Law (Routledge 2018). Irene is currently Research Professor of Law, PVC Aboriginal Leadership and Strategy at the University of South Australia.

Notes

* An earlier version of this paper was presented at the Brisbane Law and Society Conference in December 2016.

1 The word ngatjie in the language of the Tanganekald peoples of the Coorong means our connection to the natural world.

2 Watson (2015).

3 For further discussion of genocide, see Watson (2015), pp 109–144.

4 Watson and Kungari Aboriginal Heritage Association (2016).

5 Watson and Kungari Aboriginal Heritage Association (2015).

6 Nunga means Aboriginal person and is a term used across the areas now known as South Australia.

7 Mabo v Queensland (No 2) (1992) 175 CLR 1.

8 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12.

9 Jenny Munroe, Wiradjuri elder, activist and law advocate, speaking at the Australian Catholic University, Institute for Social Justice, Sydney School for Critical Social Thought, 16–27 May 2016.

10 South Australian Parliament, ‘Proceedings of the Council’, 25 September 1840.

11 The package of laws included Northern Territory National Emergency Response Act 2007 (Cth); Family, Community Services, Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act (No 128) 2007 (Cth); Social Security and Other Legislation Amendment (Welfare Payment Reform) Act (No 130) 2007 (Cth); Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth). See Watson (2009); Watson (2011).

12 Human Rights Committee (2009); Committee on the Elimination of Racial Discrimination (2009); Committee on the Elimination of Racial Discrimination (2010); Committee on Economic, Social and Cultural Rights (2009); Anaya (2010).

13 See Watson (2009).

14 Here I consider states in an international context and Indigenous Peoples similarly subjugated by global colonialism.

15 Wilson (1997).

16 For example, Aborigines Act 1911 (SA).

17 For example, the laws of native title and Aboriginal heritage protection do not provide us with the capacity to care for country in the ways in which we are obliged to, but are rather laws intended to assimilate First Nations into the Australian property law system. Under these laws land constitutes property, unlike our traditional relationships to our territories. See Native Title Act 1993 (Cth); Native Title Amendment Act 1998 (Cth); Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

18 An example of those processes is found in the early negotiations concerning the drafting of the United Nations Declaration on the Rights of Indigenous Peoples from the early 1980s until the mid-1990s. Venne (2013), p 75. However, these processes cannot offset the processes of assimilation, as the framework of the UNDRIP enables the ongoing assimilation to occur.

19 Anghie (2013), pp 19, 21.

20 Mabo (No 2) 1992 107 CLR 1, 30. The fragility of the Australian legal foundation is discussed by Brennan J.

21 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/68, UN Doc A/RES/61/295 (13 September 2007).

22 For a discussion of Aboriginal law, see Watson (2015).

23 One of our stories of the first sunrise is told by the magpies, whose songs today are still often the first sign we hear of the sun rising.

24 Lendrum (1977).

25 Fire stick farming is an ancient Aboriginal land management system.

26 I have written about the idea of Aboriginal law occupying the centre in the analysis of colonialism, so as to reduce ethnocentric readings and reiterations of the native savage discourses: Watson (2015).

27 I use the term terra nullius throughout this article, but this can be taken to include the doctrine of discovery as it was applied to North America in similar circumstances.

28 Churchill (2002), p 692.