Sovereign spaces, caring for country, and the homeless position of aboriginal peoples

South Atlantic Quarterly

Volumn 108, Issue 1, 2009, Pages 27-51

  Watson, Irene ^a  

^a UNIVERSITY OF SOUTH AUSTRALIA   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67649760997     PISSN: 00382876     EISSN: 15278026     Source Type: Journal    
DOI: 10.1215/00382876-2008-021     Document Type: Article

References (37)

1. Ruwi means our traditional homelands
2. Terra nullius means a land that is uninhabited by peoples or, where inhabited by peoples, the state deemed they lived without laws and governance
3. Mabo v. The State of Queensland (1992) 107 C.L.R. 1. Mabo overruled Milirrpum and Others v. Nabalco Pty. Ltd. and the Commonwealth of Australia (1971) 17 F.L.R. 141
4. However, this position was not always clear to the colonials living in Australia due to a discussion on the conflict of interpretation between the British colonial Home Office and Justice Charles Cooper of the South Australian Supreme Court on the legal status of Aboriginal peoples during the 1840s Coorong massacre, in which Cooper argued the Milmenrura lived as enemies outside the settled boundaries of the colony of South Australia. This position was refuted by the Home Office in Britain. See S. D. Lendrum, "The Coorong Massacre: Martial Law and the Aborigines at First Settlement," Adelaide Law Review 6.1 (1977): 26
5. See the Royal Commission into Aboriginal Deaths in Custody, Final Report of the Royal Commission into Aboriginal Deaths in Custody, vol. 2 (Canberra: Australian Government Publishing Service, 1991), 510, for a historical account of policy shifts to assimilation
6. Nunga refers to an Aboriginal person and is used across the southern areas of South Australia
7. Aborigines Act (SA) 1911, section 10, subsection 1. The Aboriginal protector became the legal guardian of all Aboriginal children until the age of twenty-one
8. Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (Sydney: Human Rights and Equal Opportunity Commission, 1994), 191, 234-39
9. Irene Watson, "Aboriginal Sovereignties: Past, Present, and Future (Im)Possibilities," in Our Patch: Enacting Australian Sovereignty Post-2001, ed. Suvendrini Perera (Perth: API Network, 2006), 26-27
10. Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Little Children Are Sacred (Darwin: Northern Territory Government, 2007)
11. Patricia Karvelas and Stuart Rintoul, "Critics Are Few on NT Review," Weekend Australian, June 7-8, 2008
12. Families, Community Services, and Indigenous Affairs Amendment Bill (Cth.), 2007, schedule 4, will amend the permit provisions under the NT Aboriginal Land Rights Act (Cth.) 1975. The Labor government has indicated that it would not support this amendment and would retain the current permit system
13. Mal Brough, "Aboriginal Land Rights (Northern Territory) Amendment Bill 2006: Second Reading," speech to the Parliament of Australia, Canberra, May 31, 2006, http://parlinfoweb.aph.gov.au/piweb//view-document.aspx? TABLE=HANSARDR&ID=2582653 (accessed July 10, 2008)
14. National Emergency Response Bill, part 4
15. National Emergency Response Bill, part 6, section 91. These provisions are further explained in the "Explanatory Memorandum" in part 6: on July 14, 2006, the Council of Australian Governments (COAG) agreed that no customary law or cultural practice excuses, justifies, authorizes, requires, or lessens the seriousness of violence or sexual abuse. All jurisdictions agreed that their laws would reflect this, if necessary by future amendment. COAG also agreed to improve the effectiveness of bail provisions in providing support and protection for victims and witnesses of violence and sexual abuse. The commonwealth implemented the COAG decision through the Crimes Amendment (Bail and Sentencing) Act 2006, which applies to bail and sentencing discretion in relation to commonwealth offenses. The Bail and Sentencing Act amended the Crimes Act 1914 (Cth.) to preclude consideration of customary law or cultural practice from sentencing discretion and bail hearings. The Bail and Sentencing Act also inserted provisions into the Crimes Act requiring the relevant authority to consider the potential impact on victims and witnesses and, specifically, the potential impact on victims and witnesses in remote communities, when granting and imposing bail conditions for commonwealth offenses
16. The challenge is taken pursuant to the Racial Discrimination Act (Cth.) 1975, section 132, and argued that by invoking the special measures provision in the act, the National Emergency Response Bill enables the exclusion of the operation of part 2 of the Racial Discrimination Act, so as to avoid a challenge. Similarly, the Native Title Act (Cth.) 1993 invoked the special measures provisions to avoid a challenge under the Racial Discrimination Act. However, the Native Title Act was not challenged, for at the time it was popularly supported for being an act of reconciliation. This was even though the Native Title Act validated non-Aboriginal land titles that would have otherwise been claimable lands under the principles in Mabo. It is unlikely that the challenge to the intervention will be successful due to its being characterized as a human rights intervention. For further discussion on Mabo and native title, see Irene Watson, "Buried Alive," Law and Critique 13.3 (2002): 253-69
17. Peta Donald, "Pearson Calls for End to Passive Welfare," ABC News, June 19, 2007, www .abc.net.au/pm/content/2007/s1956074.htm (accessed June 19, 2007)
18. I discuss the state's construction and the media representation of Aboriginal violence in "Aboriginal Women's Laws and Lives: How Might We Keep Growing the Law?" Australian Feminist Law Journal 26 (2007): 95-107
19. Brough, "Aboriginal Land Rights."
20. For further discussion on the illusion of Aboriginal self-determination, in particular the governance of ATSIC, see Irene Watson, "Nungas in the Nineties," in Majah: Indigenous Peoples and the Law, ed. Greta Bird, Gary Martin, and Jennifer Nielsen (Sydney: Federation Press, 1996), 1-12
21. Michael Meyers, "The Role of Identity in Minority Groups' Success or Failure-The Pitfalls of Victimhood" (paper presented at the "Strong Foundations: Rebuilding Social Norms in Indigenous Communities" conference, Cairns, Queensland, June 25 and 26, 2007)
22. Cited by Tony Koch, "Get Parents Who Shield Abusers: Pearson," Australian, June 26, 2007
23. Education and Health Standing Committee, Initiatives in the Remote Indigenous Communities of Cape York (Perth: Parliament of Western Australia, 2007), 55-61
24. Irene Watson, "Raw Law" (PhD diss., University of Adelaide, 1999). See also Moana Jackson, "Justice and Political Power: Reasserting Maori Legal Processes," in Legal Pluralism and the Colonial Legacy, ed. Kayleen M. Hazelhurst (Aldershot, UK: Avebury, 1995), 242-63
25. For a discussion on the impact of Hegel's idea of progress into "statehood" and the exclusion of Aboriginal peoples from having any international subject status, see Irene Watson, "Internationalising, Humanising, and Diversifying: The One Nation State," in Activating Human Rights, ed. Elizabeth Porter and Baden Offord (Bern: Peter Lang, 2006), 251-65
26. Watson, "Buried Alive." Here I discuss the story of the frog to illustrate the power of diversity and the difference of Aboriginal collective and sovereign identities to that of the oneness of the state apparatus
27. Haunani-Kay Trask, From a Native Daughter: Colonialism and Sovereignty in Hawaii (Monroe, ME: Common Courage Press, 1993), 153
28. Nonie Sharp, No Ordinary Judgement (Canberra: Aboriginal Studies Press, 1996), 164
29. One of the challenges of modern property law is the political valorization of the importance of exclusive private property relations as a hallmark of progress, ignoring the reality that Western legal relations rarely measure up to the ideal of exclusive, bounded rights. See Robert Gordon, "Paradoxical Property," in Early Modern Conceptions of Property, ed. John Brewer and Susan Staves (New York: Routledge, 1995), 105
30. However, while these relationships can be seen to impede progress, Kathy Bowrey identifies how these same antiquated relationships are also seen as comprising valuable "cultural property" and an important resource for indigenous development in the domain of intellectual property. For earlier developments of this argument, see Kathy Bowrey, "The Outer Limits of Copyright Law: Where Law Meets Philosophy and Culture," Law and Critique 12.1 (2001): 75-98
31. I am indebted to Kathy Bowrey for her comments and our conversations on what she refers to as the "puzzle of cultural property." For further discussion on the connections to the "puzzle of cultural property," see Kathy Bowrey, "Alternative Intellectual Property? Indigenous Protocols, Copyleft, and New Juridifications of Customary Practices," Macquarie Law Journal 6 (2006): 65-95
32. Sharon Venne, "Treaties Made in Good Faith," in Natives and Settlers-Now and Then: Historical Issues and Current Perspectives on Treaties and Land Claims in Canada, ed. Paul W. DePasquale (Edmonton: University of Alberta Press, 2007), 7. On the ability of one legal system (such as Anglo-Australian law) to extinguish a foreign legal system (such as Aboriginal law), see Michael Detmold, "Law and Difference: Reflections on Mabo's Case," in Essays on the Mabo Decision (Sydney: Law Book Company, 1993), 39-47
33. William Stanner, White Man Got No Dreaming: Essays, 1938-1973 (Canberra: Australian National University Press, 1979), 9
34. Harold Cardinal, "Nation-Building as Process: Reflections of a Nihiyow (Cree)," in Natives and Settlers, 67-68
35. R. v. Walker (1994) NSW Court of Criminal Appeal (unreported)
36. See also Greta Bird, "Koori Cultural Heritage: Reclaiming the Past?" in Majah, 104
37. Alain Badiou, The Century (Cambridge: Polity Press, 2007), 16-17