The earth isn’t looking healthy. Most of us care about how we can engage with and keep safe the thing that our lives – and our children’s lives – depend on. It’s no longer an academic question, but one that stares deep into the human condition and how our communities relate to the material, nature and the ecological.
Recently I’ve spent time in the company of incredible people. I live in Europe, and at various conferences and meetings I've recently found myself surrounded by friends from home.
They were mainly Aboriginal Australians, and they reminded me of where I come from, and what’s important in life. Some were professors, others were social workers, artists and writers, but what they had in common was an intense engagement with their communities and the wider Australian public discourse: they cared.
Australia has become one of the test cases for climate change, as seen in scary books like Jared Diamond’s Collapse. The French social scientist Bruno Latour remarked in February this year on the ‘uniquely Australian strategy of voluntary sleepwalking towards catastrophe’. In the face of the Abbott Government’s ecologically suicidal policies and social science dismantling, Latour said that ‘not thinking of the future, when you’re Australian, [was] the most rational thing to do’.
We now have our own political paradigm: the uniquely Australian model of wilful ignorance is agnotology, where 'ignorance is not merely the absence of knowledge, but an outcome of cultural and political struggle.' A substantial, if not the major part of this struggle is the wilful ignorance of indigenous jurisprudence and what it entails for the land that all Australians now inhabit, enjoy and profit from.
I wish he wasn’t, but Latour is right. ‘Business as usual’ pervades the politics and comfort of the country more than ever before. The International Panel on Climate Change warns that profit without limitations cannot continue. This conflicts with the language of our prime minister who said last week that coal is good for humanity.
But what he forgets is that humanity lives within the earth’s critical zone, a home that’s not looking so good for humanity. Abbott deliberately forgets the obvious: that humanity is inextricably linked to its environment. He’s saying that it’s okay to extract, own and abuse the land so that white history can continue its progressive, destructive and eventually suicidal path.
As the book from Bill Gammage, The Biggest Estate on Earth, illustrates, it doesn’t have to be this way. Before invasion, the country thrived under laws and custodianship, which have been under attack since the tall ships landed. Is it too late to turn towards a different mode of living with the land that takes guidance from indigenous law? Where is the threshold of ‘too late’?
While the Australian state believes it has given human rights and equal citizenship to Aboriginal Australians, its assimilation policies remain intact. Country, the land and its gifts have been assimilated into the jurisdiction of white settler law, which contains the principles of ownership, appropriation and now intense exploitation. Nothing since invasion has altered the hidden backbone of this law.
Our narratives of what’s important are so cut off from history – from the taking of healthy country away from guardians who lived their respectful and reciprocal law with it – that we are addicted to laws that allow us to commit violence against the very home we profess to love.
While the world struggles to understand how we arrived in this position of planetary violence against earth, Australia has no excuse not to trace the origins of its relatively recent history of genocide and impending ecocide. If we kill, separate, assimilate and destroy the laws of the country that pre-existed white arrival and replace them with settler law that seeks to merely profit from earth, there has to be a kickback.
Australia is a fragile ecology, and home to the oldest continuing law in the world. This law older than settlement law and scares white history senseless because the foundations of the Australian state are built upon unsustainable resource exploitation.
This prior jurisprudence asks us to respect the land, to live lightly with it, to care and be custodians. It asks us to live with country and land as if our lives depended upon and were nurtured by it. Isn’t this exactly the kind of solution that global communities across the globe are trying to reinstate in order to live ethical and sustainable lives?
Why would such principles of law need to be dismissed, erased and ignored? Can’t they become central to other legal systems and, if not, why not? While recycling, emission limitations, mitigation, adaption, and increased use of renewable energy are all fantastic methods to manage our current dilemma, they seem like desperate attempts to treat the symptoms rather than soberly facing the cause. Australia’s white history is built upon ecological violence: Aboriginal Australia was, and still is, in the way.
The legal doctrine of terra nullius not only sought to erase the peoples that existed on the land that had been invaded, but also the laws that connected country to those peoples. Native title has never sought to reverse the deeper aspects of terra nullius: the erasure of indigenous jurisprudence.
Like western jurisprudence, indigenous jurisprudence is not frozen in traditional time but speaks to the past, present and future through its interpretation of events. Dance, stories and ceremony are forms of legal transmission that continue still. The excuse that written law trumps this is arrogant denial.
Invasion cut through indigenous jurisprudence as though it didn’t exist or belonged in museums and sepia notebooks of dead anthropologists. Unfortunately this was a fatal mistake that our grandchildren will hold us accountable for if they have to struggle in inhospitable environments that have been betrayed.
One of the most resistant and violent points of the white nation state of Australia is not only the attempted erasure of indigenous peoples but, equally, their law and land and the recognition that this relationship continues.
So while there are calls for indigenous people to be included in the Constitution, there should also be calls, given the connection of theses peoples to land and law in equal measure, for indigenous jurisprudence, and not only its criminal code but its deep law of land – to also be recognised. as these people are connected to land and law in equal measure, this calls also for indigenous jurisprudence – and not just its criminal code but its deep law of land – to also be recognised.
We should not forget that the land Australians live upon was under a prior jurisdiction where care rather than unfettered exploitation was a central guiding principle. A dear friend and law holder from Alice Springs said to me as we were discussing Australia and climate change in a Scottish pub, ‘Well, I’ve been told by my ancestors that white people are just a blip in time.’
She smiled wide. But she wasn’t talking about the colour of skin, but about the state of our souls, and how this moment, this seemingly long, violent moment, will eventually pass because it is unsustainable, and not only ecologically.
Bronwyn Lay is an Australian
writer, lawyer and independent researcher currently living in France.
She recently completed a PhD at the European Graduate School on the
relationship between law, nature, materiality and ecology.