A Dialogical Encounter with an Indigenous Jurisprudence Author Morris, Christine Published 2007 Thesis Type Thesis (PhD Doctorate) School Griffith Law School DOI https://doi.org/10.25904/1912/1555 Copyright Statement The author owns the copyright in this thesis, unless stated otherwise. Downloaded from http://hdl.handle.net/10072/367386 Griffith Research Online https://research-repository.griffith.edu.au A Dialogical Encounter with an Indigenous Jurisprudence Christine Faye Morris BA Griffith University (Modern Asian Studies) BA University of Queensland (Hons) Socio-Legal Research Centre Griffith Law School Griffith University, Brisbane Australia A Thesis Submitted for the Degree of Doctor of Philosophy in the Faculty of Law 2007 ABSTRACT A Dialogical Encounter with an Indigenous Jurisprudence This thesis is a logos — the beginning of a new paradigm in legal theory. Its objective is to begin a new line of intellectual inquiry. It is meant to open up a new theoretical framework within which different Indigenous peoples can explore and consider their legal regimes. Thus this thesis is an attempt to offer the reader a ‘dialogical encounter with an Indigenous jurisprudence’. Hence I carry out this act of legal reclamation by redefining jurisprudentia through my Yugumbeh language and determining its meaning through the concepts of talngai and gawarima. Thus it becomes a Talngai-gawarima jurisprudence. This Talngai-gawarima jurisprudence will bring the reader into a dialogical encounter with a reading of the law of Corpus Australis — that law is conceptualised as Land is the Law. This definition gives shape to the jurisprudential framework that orders the chapters — a shape that is not just abstract but physical and metaphysical; a shape that is circular and concentric at the same time, and so allows for the triadic layering of meaning to each reading. I have constructed this visual representation as follows: the outer circle is the cosmology, so that the human never forgets that they are inside a universe — a universe that has a law. This law is found in the second circle, which on one hand resembles the ancient Greek law of physis, but on the other hand is a law based on relationship and so is titled in this thesis as the Law of Relationship. This is a relationship that orders the placing of the individual in the innermost circle and patterns their rights and responsibilities into the Land. The jurisprudential texts which inform the theoretical framework of this thesis are found in the works of three Senior Law Men: SLM Bill Neidjie, SLM David Mowaljarlai and SLM Wandjuk Marika, who have turned to the literate tradition to bring to our attention the urgent message that the Djang (primordial energy) is out of balance and the rebalancing of that Djang is up to the individual through their lawful behaviour, a behaviour which patterns them back into land. The source of the imbalance, I argue, was the sublimation of Women’s law and their ceremonial access to the Land. iii Abstract iv To test this hypothesis, I carried out a reading of three contemporary narratives (Whale Rider, Thunderheart and Plains of Promise) which address issues relating to Indigenous peoples and their law. In each of the jurisprudential readings, I demonstrate how Indigenous peoples and their laws are actualised. At the end of each chapter, I also reiterate the importance of the reintegration of women’s law and ceremony if the gift of law which the Senior Law Men are offering is to be recognised by other laws. This thesis, therefore, is a new story of law about an ancient knowing, a knowing which calls to the present to re-balance behaviour and understanding of Land if we are to survive. This call is to Indigenous peoples and is about the importance of understanding their law as Land is the Law. STATEMENT OF ORIGINALITY This work has not been previously submitted for a degree or diploma in any university. To the best of my knowledge and belief, this thesis contains no material previously written or published by another person except where due reference is made in the thesis itself. Christine Morris 2007 v ACKNOWLEDGMENTS I am indebted to William MacNeil for his generosity of intellectual spirit that allowed me to introduce ideas that have come from the ‘other side of the fence’. As a legal boundary rider himself, he has made sure I haven’t fallen off the horse. Also I am indebted to the Griffith Law School for allowing me to speak of another Law without constantly referencing their law as a register of its legitimacy. Thanks also to their resident ‘don’, Shaun McVeigh. My indebtedness to my sister Beverly and her family for their continual support in my academic career and thanks equally to Mary Graham, who has not only been a sister to me but also an intellectual elder, who along with Lilla Watson launched my journey into this world. These journeys have also been literal and taken me into other Indigenous worlds where I have met guiding lights such as Hinsha Waste Agli Win, Mr Moana Jackson, Senior Law Men and Women who have influenced me, as well as other academics, particularly, Michael Meadows, Bradley Sherman, Ben Goldsmith, Tony Bennett, Joan Ropiha, Ron Day, Adrian & Henriette Marrie, Ivy Trevellian, Tom Round, Rob McQueen, Therese Wilson, Stephen Augustine, Ahasiw Maskegon-Iskwew, Russell Bomford, AJ Brown, Michelle Barker, Lyndon Murphy, Roshan De Silva Wijeyeratne, Julia Howell and Larry Crissman.Also the life-saving editing by Sue Jarvis and Bev Jefferson. And finally my gratitude must be expressed to my children, grandchildren and mother for just being there. Just as much, I thank my friends Glenda Donovan, Rita Mazzocchi, Kine Camara, Jonathan Richards, Aven Noah, Ephraim Barney, Robin Trotter, Colleen Wall, Donna Weston, Carol Ballard, Marianne Mitchell, Peter Odihambo, Sue Collins and cousins Marjorie, Leona, Shirley and Robin. Thanks to my clans, Kombumerri and Munaljahali, and my ‘living dead’ on all sides of my family, and to the Lands of Gold Coast, Beaudesert, Kimberley, East Arnhem Land, Central Australia, Torres Strait Islands, Aotearoa, the great Turtle Island and South Africa. vii CONTENTS Abstract ......................................................................................................... iii Statement of Originality...................................................................................... v Acknowledgments............................................................................................. vii Chapter 1 Introduction ..................................................................................... 1 Shape of the Jurisprudence .............................................................................5 Cosmology ............................................................................................6 The Law of Relationship.......................................................................6 Responsibilities and Rights ...................................................................7 The Pattern (Methodology) of the Thesis.......................................................8 The International Community ........................................................................8 The Theorist..................................................................................................10 The Methodology .........................................................................................14 The Narratives ..............................................................................................16 Chapter 2 Literature Review ......................................................................... 23 The Journeys.................................................................................................24 Journey with Hinsha Waste Agli Win..................................................24 The Maori Cosmology..................................................................................31 Where Did the Problem Come From?.................................................40 What is Already Known About This Problem? ..................................44 What Other Methods Have Been Tried?.............................................48 Taiaiake Alfred (1999) Peace, Power, Righteousness: An Indigenous Manifesto, Oxford University Press....................................................49 Gregory Cajete (1994) Look to the Mountain: An Ecology of Indigenous Education, Kivaki Press ...................................................52 Chapter 3 The Theory: Senior Law Man Neidjie — Cosmology ................. 57 Cosmology....................................................................................................60 Story About Feeling......................................................................................61 Commentary .................................................................................................67 Law of Relationship......................................................................................71 Commentary .................................................................................................75 Rights and Responsibilities: Diplomacy.......................................................78 Paintings .......................................................................................................79 Commentary .................................................................................................82 Conclusion....................................................................................................84