oFf r-rE u,\l7 LAW LIBRARY --l tlb.2reS ) tß,2 \ Raw Law: The Coming of the Muldarbi and the Path to its Demise Irene Margaret Watson In writing this thesis I have engaged in a personal struggle to decolonise myself, so it is written in a style which is part of that ongoing process of decolonisation, it is a writing of a song that still sings within. A song circles, so does the written form it does not always follow the rules of grammar or 'normal' academic structute, although I would argue the ideas and arguments are there, they are just positioned differently. A thesis submitted for the degree of Doctor of Philosophy of the University of Adelaide In the Faculty of Law June L999 This work contains no material which has been accepted for the award of any other degree or diploma in any university or other tertiary institution and, to the best of my knowledge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. The thesis includes parts of the following articles, which were written solely by me during the period of the candidature: 'The Power of Muldarbi and the road to its demise', (1,998) 1l Australian Feminist Law Journal 28 'Naked people's rules and regulations', (1998) 4 Law Text and Culture I 'Ways: 'Indigenous Peoples' Law survival against the colonial state, (1997) 8 The Australian Feminist Law Journal39 I have also submitted the following article and at the time of writing I was still awaiting the referees report, 'Kaldowinyeri' (L999) 3 Flinders Journal of Law Reþrm. I consent to this copy of my thesis, when deposited in the University Library, being made available for loan and photocopying. Irene Watson May 1999 ll ACKNOWLEDGBMENTS The writing of this thesis has been difficult because I have lived the process that I write about. During the writing of the thesis many events and issues continued to draw me away from the focussed process of writing. At the time the diversions were stressful, but now when I look back I see how they have enriched and become a valuable part of the thesis. I found myself constantly weaving this material into the thesis as it grew. For all of those diversions I am thankful to all of their initiators. Throughout my life I have lived and worked with senior indigenous peoples and elders who have shared much of their knowledge. They are too many to mention, and all are of equal impofance in the way they have had an impact on the way I think and live my life. I hope the ideas I write about in this thesis bring justice to their teachings. I acknowledge the stories which have nurtured my life and the oral history of my mother. Together we have shared many painful hours grieving and many more in laughter at the joy of our life as Nunga women. It is that spirit that has carried the thesis to its final completion. I am grateful for the oppofunity I have had to paficipate at a number of intemational indigenous forums and for my initiation into this arena I will be forever grateful to the support and trust that was given to me by Paul Coe. I also acknowledge Sharon Venne, for her generosity in the sharing of her immense knowledge of intemational law. The Chiefs of Ontario provided the opportunity to practise this knowledge with other members and co-judges of the First Nations International Court of Justice. In particular I am grateful for the insights of Judge Moana Jackson, and John Mohawk. I also would like to acknowledge the genocide prosecutors and interveners who initiated the ACT Supreme Court Genocide case, for the opportunity to work collectively on what began as the impossible and against-all-odds case. It had to begin because all else had failed. The experience of the genocide case, like the First Nations Intemational Court of Justice, are experiences that I have woven into the fabric of this thesis. I am grateful for the readings and comments of drafts in their various stages of development; by Dr Jeannine Purdy, Ellie Gilbef, Georgina Williams, Michelle Madigan, Mary Heath, Dr. Margaret Davies, Dr Dean Fergie and the reviewers of journal articles to the Australian Feminist [¿w Joumal. I am grateful to Michael Detmold for his supervision of this thesis, for his kindness and ability to allow the creative process to flow. I am thanKul to have been allowed the space to think and write freely. My partner Michael has read and re-read drafts, kept the house watrn, fed and loved children and animals, without which I could not have found this space to write, and for which I thank him. I wrote this thesis for my three daughters, Tanara, Kudnarto and Kirrakee as a song for their future and trackings into Kaldowinyeri. lll lv ABSTRACT This thesis is about the origins and original intentions of law; that which I call raw law. Law emanates from Kaldowinyeri, that is the beginning of time itself. Law first took form in song. In this thesis I argue that the law is naked like the land and its peoples, and is distinguished from that known as law by the colonists, which is a layered system of rules and regulations, an imposing one which buries the essence and nature of law. The thesis is a writing from 'inside', it is from my Nunga - Aboriginal -perspective that I write. In writing this thesis I have engaged in a personal struggle to decolonise. The thesis is written in a style which is part of that ongoing process of decolonisation. It is a writing of a song that still sings within. I write about nakedness, of naked law, land and people. The loss of nakedness and the clothing of the body, where dress was imposed by force and domination, is the movement away from being naked in body and in law. Terra nullius of the land, law and people, is what the coloniser clothed the land and its peoples in. Law has a dimension which is spiritual; we believe that we are descended from beings of the dreaming. They are called ngaitji or totems. The ngaitji represent our spiritual attachment to our ancestral beings. Our ngaitji teaches us about the unity we share with all things in the natural world. That is law. The spiritual relationship we have with the natural world is one which is in opposition to a western perspective of the natural world being like a supermarket whe¡e all things become a commodity for use and consumption. The colonists have no concept of the natural world as a relation. The use the land as a commodity has the same meaning to us as the consumption of one's mother. I write about the historical and contemporary faces of the muldarbi and its past and continuing polices of genocide against indigenous peoples. I also discuss how the mainstream in Australia cannot see the muldarbi behind the masks it wears. The masks are many; some of them are protection, assimilation, native title, cultural rights, and international laws. Native title is a muldarbi because it is a killer of raw law. Native title is 'known' to recognise indigenous rights to land, but it is an illusion. Instead, it will open our lands to further rape of their natural resources. In this thesis I explore the availability of space away from the genocide, and the possibility of re-establishing an indigenous horizon. In finding that space I journey through the trauma of all peoples to include those who call themselves non-indigenous; I look at issues of co-existence, treaties, and intemational law, and its development of an indigenous rights discourse, and how it is we can travel a path of peaceful co-existence. v vl Table of Contents Chapter I : Kaldowinyeri - Munaintya I l.l In the beginning L L.2 We are the natural world it talks to us 7 1.3 Being of cycles tI 1.4 Muldarbi the enemy I seek to defeat 20 15 Voice and being a song 23 t.6 l¿nd and peoples 30 Chapter 2: Raw Law: the law of song and ruwe 35 2.1. Introduction 35 2.2 Being the I¿w 37 2.3 Future cycle of Law and its relationships 37 2.4 Murrabina 40 2.5 The law is in the song 4l 2.6 Law is in the land 43 2.7 I¿ws relating to land 49 2.8 Law is the song of the collective 55 2.9 Can you kill the law? 58 2.to I¿w and secrecy 60 2.ll Learning the Law 62 Chapter 3: Nakednes: the coming of cloth 79 3.1 Introduction 79 3.2 Naked and invisible 82 3.3 The rugged cross and the ragged clothing 83 3.4 Shame a form of extinguishment 88 35 Enter the church, exit naked 94 3.6 Dressing the law in rules and regulations 96 Chapter 4: Who Am I? 101 4.L Introduction 101 4.2 This is my country this is me 105 4.3 The story -song is who we are 109 vll 4.4 Anthropology 110 45 The krinkri construction of Nunga identity and culture L20 4.6 Am I the enemy? t37 4.7 Coloured skin t40 4.8 The process of making invisible L43 4.9 And who are you? I45 4.10 The universal order 1,52 4.LL Exclusion on a global stage 160 4.L2 Self-determination L6l ,l 1a T\-^f+ n^^l^-^¿:^- ¿L^ lì:-L¿- r-l:---^--- D^--l^- T.IJ LtLoLJ LtewL4r4t.lu¡l ul^f rrtg I\rË,utù ur^f ururBElruuù rtiuprtis roo 4.14 Peoples not populations L74 4.15 Who's your People? 176 Chapter 5: Dressed to Kill L81 5.1 Introduction 181 5.2 The theory of emptiness: tera nullius and genocide 185 5.3 Genocide where it is? 192 5.4 Protection, segregation, joumey to death 205 55 Assimilation final absorption and 2I0 the imposition of the national pattem of the oppressor 5.6 Forced removal of children and 2t6 the destruction of the national pattem of the oppressed group 5.7 Cultural genocide and 222 the destruction of the national pattem of the oppressed group 5.8 Kumarangk a case study in cultural genocide 227 5.9 Genocide in your face: its not happening 264 5.10 Genocide the celebration