Constructing Law, Space, and their Subjects:
17 of 20
Realities of Law and Governance among the North American Indians
and Australian Aboriginals
Deborah Rose Bird's Nourishing Terrains (Canberra: Australian
Hetitage Commission, 1996) offers an Australian perspective echoing the
Each country has its sacred origins, its sacred and dangerous
places, its sources of life and its sites of death. Each has it own people,
its own Law, its own way of life. In many parts of Australia, the ultimate
origin of the life of country is the earth itself, as Hobbles Danaiyarri,
a Mudbura man of Yarralin (Northern Territory), explained:
Everything come up out of ground -- language, people, emu,
kangaroo, grass. That's Law.
In Aboriginal Australia each country is surrounded by other countries.
The boundaries are rarely absolute; differences are known, respected
and culturally elaborated in many ways. As David Turner says, Aboriginal
Australia is made up of a series of 'promised lands', each with its
own 'chosen people'.
Each nourishing terrain, each promised land, was cared for. Aboriginal
land management was long thought by Europeans to have been non-existent;
Aboriginal people were thought to have been 'parasites on nature' --
people for whom the labour of working the land was unknown. It is now
possible to say with certainty that Aboriginal people's land management
practices especially their skilled and detailed use of fire, were responsible
for the long-term productivity and biodiversity of this continent. In
addition to fire, other practices include selective harvesting, the
extensive organisation of sanctuaries, and the promotion of regeneration
of plants and animals. Organised on a country by country basis, but
with mutual responsibilities being shared along Dreaming tracks, and
through trade, marriage, and other social/ritual relationships, management
of the life of the country constitutes one of Aboriginal people's strongest
and deepest purposes in life, as well as making up much of their daily
lives in so far as it is still possible for people to take care of their
Country, ideally, is synonymous with life. And life, for Aboriginal
people, needs no justification. Just as no justification is required
to hunt and kill in order to support one's own life, so there is no
justification required in asserting that other living things also want
to live, and have the right to live their own lives. It follows that
other species, as well as humans, have the right to the conditions which
enable their lives to continue through time: minimally to the waters
and foods on which they depend, and to the sanctuaries in which they
cannot be hunted or gathered or harmed in any way. It further follows,
as I will discuss in greater detail below, that all living things have
the right to their low Law and custom, to their own sacred places and
rituals (pp. 9-10).
Later in her book Bird Rose turns to more detailed description of Dreamng
and the Dreamtime:
Silas Roberts, first Chairman of the Northern Land Council, stated:
Aboriginals have a special connection with everything that
is natural. Aboriginals see themselves as part of nature. We see all
things natural as part of us. All the things on Earth we see as part
human. This is told through the ideas of dreaming. By dreaming we mean
the belief that long ago, these creatures started human society. These
creatures, these great creatures are just as much alive today as they
were in the beginning. They are everlasting and will never die. They
are always part of the land and nature as we are. Our connection to
all things natural is spiritual. (p. 26)
. . . . . . . .
Whether the world comes into being by Dreaming, by history, by Story,
or in Dreamtime, Aboriginal people's explanations about this on-going
creation of the world are similar throughout the continent. Mussolini
Harvey, a Yanyuwa man from the Gulf of Carpentaria explains:
White people ask us all the time, what is Dreaming? This is hard
question because Dreaming is a really big thing for Aboriginal people.
In our language, Yanyuwa, we call the Dreaming Yijan. The dreamings made
our Law or narnu-Yuwa. This Law is the way we live, our rules. This Law
is our ceremonies, our songs, our stories; all of these things came from
the Dreaming. One thing that I can tell you though is that our Law is
not like European Law which is always changing -- new government, new
laws; but our Law cannot change, we did not make it. The Law was made
by the Dreamings many, many years ago and given to our ancestors and they
gave it to us.
The Dreamings are our ancestors, no matter if they are fish, birds,
men, women, animals, wind, or rain. It was these Dreamings that made
our Law. All things in our country have Law, they have ceremony and
song, and they have people who are related to them ...
The Dreamings named all of the country and the sea as they travelled,
they named everything that they saw. As the Dreamings travelled they
put spirit children over the country, we call these spirit children
ardirri. It is because of these spirit children that we are born, the
spirit children are on the country, and we are born from the country.
In our ceremonies we war marks on our bodies, they come from
the Dreaming too, we carry the design that the Dreamings gave to us.
When we wear that Dreaming mark we are carrying the country, we are
keeping the Dreaming held up, we are keeping the country and the Dreaming
alive. That is the most important thing, we have to keep up the country,
the Dreamings, our Law, our people, it can't change. Our Law has been
handed on from generation to generation and it is our job to keep it
going, to keep it safe. (pp. 26-27)
Consider also the following explanations of Aboriginal conceptions of
a spirit centered order, and of the "law", or "julubidingga" from McRae,
Nettheim and Beacroft, Indigenous Legal Issues:Commentary and Materials,
2nd Ed. (Sydney: L.B.C., 1997) pp.80-81, 76-77:
2.3.1 The Dreaming
". . . the blackfellow's outlook on the universe and man is
shaped by a remarkable conception . . . impalpable and subtle . . .
Although the Dreaming conjures up the notion of a sacred, heroic time
of the indefinitely remote past, such a time is also, in a sense, part
of the present . . . The Dreaming is many things in one. Among them,
a kind of narrative of things that once happened; a kind of charter
of things that still happen; and a kind of logos or principle of order
transcending everything significant for aboriginal man . . . man, society
and nature, and past, present and future, are at one together within
a unitary system . . . [the Dreaming provides] a "key" or guide to the
norms of conduct, and a prediction of how men will err." (Stanner, 1987,
Bell emphasises the complementary roles of Central
Australian men and women as upholders of the Dreaming.
"Bern . . . stated 'Aboriginal religion is, par excellence,
the business of men' . . . I would paint a quite different picture of
women's religious life.
[Bell goes on to explore why researchers consistently under-estimate the
status of women, portraying them as subordinate to men.] (Bell, 1987,
. . . in ritual women emphasize their role as nurturers of people,
land and relationships. Their responsibility to maintain harmoniously
this complex of relationships between the living and the land is manifest
in the intertwining of the ritual foci of health and emotional management.
Through their . . . ceremonies . . . they nurture land . . . resolve
conflict and restore social harmony and . . . manage emotions . .
In women's rituals the major themes of land, love and health fuse
in the nurturance motif which encapsulates the growing up of people
and land and the maintenance of complex land/people relationships.
When women hold aloft their sacred boards on which are painted ideational
maps of their country; when they dance hands cupped upwards, they
state their intention and responsibility to grow up country and kin
. . . their wide-ranging and broadly-based concept of nurturance is
modelled on the Dreamtime experience . . . The past is encapsulated
in the present: the presence permeates the past . . .
Under the Law men and women have distinctive roles to play . . .
men and women alike are dedicated to observing the Law which orders
their lives into complementary but distinct fields of action and thought
. . . Men stress their creative powers, women their role as nurturers,
but each is united in their common purpose ñ the maintenance of their
society in accordance with the Dreamtime Law. . ."
2.2.1 The Concept of "Law" in Indigenous Societies
From the outset, it needs to be noted that Indigenous concepts of "law"
are much broader than the concept of "law" as understood within the context
of the Australian legal system.
". . .anyone who is acquainted with Aboriginal communities
in the north or centre of the country will know that they often speak
of their tradition as 'law'. What do they mean?
In the Gibson Desert of Western Australia,
for example, the Mardudjara have the word julubidi, glossed as 'law'
by those who speak English. To say that an action is julubidingga,
'according to the law', is to commend it. In the opinion of the anthropologist
Robert Tonkinson . . . the Mardudjara term 'connotes a body of jural
rules and moral evaluations of customary and socially sanctioned behaviour
patterns'; it is practically a synonym for 'traditional culture'.
The rules and practices comprised in this culture are said by the
Aborigines to have originated in the Dreamtime, that mythical era
in which creative beings shaped the land and imposed life's order.
Concepts akin to julubidi are to be found in
many Aboriginal communities. Some reports show that natural regularities
as well as norms of human conduct may be meant. Thus djugaruru among
the Walbiri, who have country to the north and north-west of Alice
Springs, is said by Meggitt (1962) . . . to mean 'an established and
morally-right order of behaviour (whether of planets or of people),
from which there should be no divergence'; it can be translated as
'the law', 'the line' or 'the straight or true way'. Actions as diverse
as the making of fire (human technique), the mating of bandicoots
(animal behaviour) and the avoiding of mothers-in-law (social convention)
are subsumed under djugaruru. This breadth of meaning makes sense
in the light of the Walbiri world-view. Like the Mardudjara they suppose
nature and culture to have formed in the same period by acts of the
same beings." (Maddock, 1984, pp. 212-213)
At the same time:
"Many Australian Aborigines use the English word 'law' to
refer to their cultural legacy . . . Their choice of this term suggests
that they perceive parallels between their 'law' and that of whites
in terms of obedience to a set of powerful dictates, and of punishment
for non-conformity, since in both systems human agents are involved
in the punishment process . . ." (Tonkinson, 1988, p 409)
If the systems of government, law and justice of aboriginal peoples were
complex, they were also marked by diversity. This was especially true
in relation to what became Canada. The First Nations people ranged from
the nomadic fishers and hunters who peopled the northern tundra, parts
of the boreal forest and the prairies; to those who mixed hunting and
farming in the St. Lawrence Valley and Great Lakes areas; onto the more
sedentary peoples who fished and harvested wood, plants and fruit from
permanent settlements on the Pacific coast. Political and legal cultures
varied greatly too, from the egalitarian modes of authority and dispute
resolution practised by the hunting societies, to the hierarchical systems
of governance and law in place among the northern tribes on the west coast
in which status was more important in defining a person's place in the
It is also evident that while war or violence occurred between aboriginal
peoples, most especially among those leading a more settled, agrarian
or fishing existence, it was often limited in extent. Moreover, as the
history of the Iroquois Confederacy from the late 15th century shows,
there were tribes who practiced sophisticated diplomacy and statecraft
in establishing and preserving peace within the nation and regulating
their external relations.
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