Buried alive

Law and Critique

Volumn 13, Issue 3, 2002, Pages 253-269

  Watson, Irene ^a  

^a NONE   (Australia)

Author keywords

Aboriginal law; Colonialism; Homogenous minority; Sovereignty; terra nullius

Indexed keywords

EID: 27744504760     PISSN: 09578536     EISSN: 15728617     Source Type: Journal    
DOI: 10.1023/A:1021248403613     Document Type: Review

References (46)

1. This story is known throughout Aboriginal Australia.
2. The indigenous name for the landmass known as North and South America.
3. Means white people, for when the invaders first arrived the old people sat watching them walk ashore and thought that they were the spirits of ancestors returning.
4. When I refer to our 'laws' or the 'law' I mean Aboriginal or Nunga laws.
5. Means demon spirit.
6. Hegel cited in J. McCarney, 'Hegel on History' (London: Routledge 2000), 154.
7. Hegel cited in F. Dallmayr, "Re-thinking the Hegelian State", in D. Cornell, M. Rosenfeld, and D.G. Carlson, eds., Hegel and Legal Theory (New York: Routledge, 1991), 321-346.
8. I speak about clothing in the sense of colonising layers, for further discussion see I. Watson, Raw Law, the Coming of the Muldarbi and the Road to its Demise, PhD Thesis, University of Adelaide, 1999.
9. I use this tense because it is as I know it; a continuum.
10. See S. Motha, 'Encountering the Epistemic Limit of the Recognition of 'Difference', Griffith Law Review 79 (1998), 79-96,
11. M.J. Detmold, "Law and Difference: Reflections on Mabo's Case", Sydney Law Review 15 (1993), 159, and
12. the High Court in Mabo (No. 2), which failed to recognise difference in their construction of native title so as to make it fit within a western property paradigm. See also Brennan J at Mabo (No. 2) 175 CLR 1:51.
13. Western Sahara Advisory Opinion, 1975 I.C.J. 12.
14. See Brennan J, Mabo v. Queensland (1992) 66 ALJR: 408, 421-422.
15. This application is discussed by the son of Justice Brennan, in Frank Brennan, 'Mabo and Its Implications for Aborigines and Torres Strait Islanders', in M.A. Stephenson and S. Ratnapala, eds., Mabo: A Judicial Revolution The Aboriginal Land Rights Decision and Its Impact on Australian Law (St. Lucia: University of Queensland Press, 1993), 24-47. He swiftly concludes, Nungas have no capacity or international personality to seek an opinion from the UN.
16. Committee On the Elimination of Racial Discrimination 54th Session 1-19 March 1999, Draft decision (2) 54 on Australia of the Committee on the Elimination of All Forms of Racial Discrimination: Australia. UN doc. CERD/C/54/Misc.40/Rev.2.
17. Jaques Derrida, The Politics of Friendship (London: Verso, 1997), 91 where he is in agreement with the ideas of Plato on justice not being attained while it is bound to power.
18. Mabo v. Queensland (1992) 175 CLR 30.
19. G. Bird, "Koori Cultural Heritage: Reclaiming the Past?" in G. Bird, G. Martin and J. Nielsen, eds., Majah: Indigenous Peoples and the Law (Annandale: Federation Press 1996), 100-128.
20. Mabo v. Queensland (1992) 175 CLR 1, 31-35 and 78.
21. Here the frog is the state, and all other manifestations of slurping power, that of for example trans-national corporations.
22. Taken from an idea by Catharine McKinnon, for further discussion on the Aboriginal industry of pragmatism, see I. Watson, "Power of the Muldarbi, the Road to Its Demise", Australian Feminist Law Journal 11 (1998), 28-43.
23. Mabo v. Queensland (1992) 107 ALR 1, 18, 28, per Brennan J, and at 82 per Deane and Gaudron JJ, and at 141, per Toohey J, declare the 'death' of terra nullius in relation to the property law of Australia.
24. The Native Title Act 1993 (Cth) created a native title claims process, based on the common law rules established in the High Court decision Mabo (No. 2). If I am able to prove that I am sufficiently native, that is, still holding the same law that my grandmother held in 1788, and the law of the ruwi has not been extinguished by other property interests over the land, then I may hold a form of native title. A title that is determined by the Native Title Act 1993 (Cth) and now state legislation following the Native Title Amendment Act 1998 (Cth).
25. For further discussion on the greedy frog see, I. Watson, "Indigenous Peoples' Law-Ways: Survival Against the Colonial State", Australian Feminist Law Journal 8 (1997), 39-58.
26. Derrida, supra n. 17, x1.
27. For further discussion ibid., 77.
28. Ibid., 84.
29. Ibid., 85.
30. Ibid., 89.
31. Cited in S.D. Lendrum, "The Coorong Massacre: Martial Law and the Aborigines at First Settlement", Adelaide Law Review 6 (1977) 26 at 30.
32. Cited in A. Castles, An Australian Legal History (Sydney: Law Book Co, 1982), 524-525.
33. The South Australian Register, 19 September 1840,
34. cited in H. Reynolds, Aboriginal Sovereignty, Three Nations one Australia (Sydney: Allen and Unwin, 1996), 121.
35. J. Durham, "Cowboys and Indians", Third Text 12/5 (1990), 10.
36. One example being the Australian Commonwealth Government's Reconciliation process.
37. See I. Watson, "Has Mabo Turned the Tide for Justice?" Social Alternatives 12 (1993), 5-8, for an early discussion on the decision in Mabo (No. 2).
38. P. Toohey, "Scheming Blacks", The Weekend Australian, September 22-23 (2001), 18.
39. Australian Mining Industry Council, Advertisement, Age, Aug 14, (1993);
40. Weekend Australian August 21-22 (1993).
41. I. Schulte-Tenckhoff, "Re-assessing the Paradigm of Domestication: The Problematic of Indigenous Treaties", Review of Constitutional Studies, Alberta Law Review 4 (1998), 239-289.
42. Brennan J in Mabo (No. 2) (1992) 175 CLR 1:69. Further refusal to confront genocide is noted by
43. V. Kerruish, "Responding to Kruger: the Constitutionality of Genocide", Australian Feminist Law Journal 11 (1998), 65-82.
44. Report on the Working Group on Indigenous Populations at its 11th session, UN doc. E/CN.4/Sub.2/93, Para. 80.
45. Professor Rosalyn Higgins, (as she then was prior to her appointment as a Judge of the International Court of Justice), speaking at a meeting of interns at the United Nations in Geneva in July 1992, stated that state boundaries had to be maintained for reasons of world peace. More recently Tony Blair stated at the UN Conference on Racism held in Durban during August-September 2001, that indigenous peoples right to self-determination should not be recognised as a right that is held in international law.
46. Derrida, supra n. 17, 92.