Constructing Law, Space, and their Subjects:
Realities of Law and Governance among the North American Indians and Australian Aboriginals

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Deborah Rose Bird's Nourishing Terrains (Canberra: Australian Hetitage Commission, 1996) offers an Australian perspective echoing the same theme:

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.

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

Stanner states:

". . . 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, pp. 225-229)

      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.

. . . 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 the maintenance of their society in accordance with the Dreamtime Law. . ."

[Bell goes on to explore why researchers consistently under-estimate the status of women, portraying them as subordinate to men.] (Bell, 1987, pp 240-243)


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 community.

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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