Book

The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence

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Abstract

The Land is the Source of Law brings an inter-jurisdictional dimension to the field of indigenous jurisprudence: comparing Indigenous legal regimes in New Zealand, the USA and Australia, it offers a 'dialogical encounter with an Indigenous jurisprudence' in which individuals are characterised by their rights and responsibilities into the Land. Though a relatively "new" field, indigenous jurisprudence is the product of the oldest continuous legal system in the world. Utilising a range of texts - films, novels, poetry, as well as "law stories" CF Black blends legality and narrative in order to redefine jurisprudentia in indigenous terms. This re-definition gives shape to the jurisprudential framework of the book: a shape that is not just abstract, but physical and metaphysical; a shape that is circular and concentric at the same time. 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, whilst resembling the ancient Greek law of physis is a law based on relationship. This is a relationship that orders the placing of the individual in the innermost circle, and which structures their rights and responsibilities into the land. The jurisprudential texts which inform the theoretical framework of this book bring to our attention the urgent message that the Djang (primordial energy) is out of balance, and that the rebalancing of that Djang is up to the individual through their lawful behaviour, a behaviour which patterns them back into land. Thus, The Land is the Source of the Law concludes not only with a diagnosis of the cause of climate change, but a prescription which offers an alternative legal approach to global health.
... We contend that in prioritising obligation in this way we can foster more meaningful encounters with non-or extra-modern traditions of law and legal knowledge. As many commentators have argued, the Anthropocene opens new possibilities and imperatives for modern epistemologies and Indigenous traditions to engage in dialogic encounters (Black 2011(Black , 2017Danowski and Castro 2017;Descola 2013). Indigenous cosmologies tend to be unencumbered by the subject/object; nature/ culture; animate/inanimate binaries that structure so much modern thought, binaries which have arguably been instrumental in producing the harms that have culminated in the onset of the Anthropocene epoch. ...
... By characterising obligations as emerging out of forms of need and dependency, which are integral to the existence of community, we aim to foreground those shared matters of concern that define the inhabitation of place. This rendering of obligation, we propose, opens possibilities for ethical encounters with Indigenous jurisprudences, which articulate laws that are grounded in the very forces that increasingly contour contemporary social life, drawing meaning and authority from their situatedness within the ecological entanglements that sustain habitability (Black 2011;Watts 2013). ...
... Following Yusoff, we contend that the Anthropocene thesis prompts an acknowledgment of the human as a geologic subject or agent (Yusoff 2013, pp. 779, 784) and, in accordance with Indigenous jurisprudences, as engaged in lawful relationships with ancestral places (Black 2011;Watts 2013). The circumscribed form of (legal) subjectivity articulated through liberal rights regimes can be displaced through an attention to obligation and the themes of need, dependence and relationality to which this concept points. ...
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The Anthropocene prompts renewed critical reflection on some of the central tenets of modern thought including narratives of ‘progress’, the privileging of the nation state, and the universalist rendering of the human. In this context it is striking that ‘rights’, a quintessentially modern mode of articulating normativity, are often presumed to have an enduring relevance in the contemporary moment, exemplified in renewed recourse to rights in their attribution to parts of the nonhuman world. Our intervention contemplates ways in which the apparent disorientations of the Anthropocene might allow for a generative reorientation of some of these presuppositions. We critically consider the institutional and discursive limitations of rights and the ambivalence of rights language, and argue that the monism that rights so often implies limits the capacity to foster generative encounters between Indigenous and non-Indigenous legal traditions. We develop a critical discourse of obligation, understood here to both precede and exceed the rights-duty correlate so central to modern law. An attentiveness to the priority of obligation, we argue, might allow us to foreground an ethics of encounter between traditions, to examine the limits of modernity’s legal and political imaginary, and to pursue a ‘radical re-storying’ of laws for the Anthropocene.
... In Native American and Indigenous studies the words place, territory, land, landscape, and homelands are synonymous and carry both physical and metaphysical components (Goeman 2015). Land is a living embodiment of personal and collective history, and for those who know how to listen, land reveals lessons for correcting our behavior and for creating reciprocal relationships with other beings (Basso 1996;Deloria 2003, Black 2010Middleton 2015). The Mapuche word for land, mapu, alludes to various tangible and intangible dimensions. ...
... Native American and Indigenous cultures regularly refer to their creation stories for guidance on lawful behavior (Deloria 2003;Nelson 2008;Black 2010;Kimmerer 2013;Bauer 2016). These oral histories detail how people came to be on the land and are literal or metaphorical instructions for how to live in reciprocal relation with our human and nonhuman relatives. ...
... First Nation communities know this well. They dream and sing a law that twines people, country and ancestors, to give life to a present, and to safeguard the future [4]. Law must, to be law, order time. ...
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Albert Camus’ reflection in The Myth of Sisyphus presents the absurd, the intrusion of the meaningless and irrational universe into the order and future focus of modern life. Central to Camus’ reading of Sisyphus and his dammed eternal labour, was time. Camus clearly saw that modernity and modern life was predicated on tensions in time. Moderns perceived, and lived, in the timescale of past-present-future. A commitment to chronology that promised an allusion of meaning within a world of essential meaninglessness. Modern law, the law forged by the structural violence of positivism and sovereignty, shared this commitment to time. However, transitions to the digital are presenting different relationships of law and time. Emergent digital legality manifests a Sisyphean closed loop of repeat, return and enclosure, past and future become a blurred undistinguished present. The modern terror of mundane life that Camus tried to recast, seems intensified and totalised in the digital. However, rather than the possibility of the joy of the absurd, there is something else. Sisyphus, Camus imaged, had weathered to look like his rock, but he never merges with it. But in the unfolding of the digital and its legality, the secure subjectivity that Camus exalted is less then certain. This might not be bad.
... Furthermore, in sharp contrast to the perception of indigenous legal systems as monolithic and internally consistent, legal pluralists began to portray such systems not only as transforming and volatileshaped and reshaped by certain historical circumstancesbut also as polycentric and multivocal in nature (see, e.g., Black 2010;Sieder 2011;Barrera 2015;Brauchler 2015). Bearing in mind that state legal systems are themselves multivocal, fragmented, and not entirely coherent, as illustrated by Dworkin (1978;; see also, Petersen and Zahle 1995); the interaction between the internally diverse state legal systems and the internally diverse indigenous ones may take on many forms and lead to varied consequences. ...
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Based on semi-structured, in-depth interviews with Arab-Palestinian sulha mediators in the Galilee, the article explores different forms of dispute resolution used for resolving matrimonial and familial disputes in this community. The “customary” sulha mechanism is shown to be highly heterogeneous in nature. Furthermore, it is argued that different modes of sulha reflect and embody different models of relationship between the Israeli state and the Arab-Palestinian minority. These modes are presented and discussed in the article.
... Este pensamiento topológico se basa en una relación holística entre el conocimiento, el tiempo y el espacio. Quisiera explorar esta idea tomando como guía la obra de académicos indígenas, como C. F. Black (2011) y Alfred (1999. ...
... Indigenous legal scholars Austin (2009) and Black (2011) summarize common threads of Indigenous jurisprudence. Indigenous philosophy and pedagogy is steeped in knowledge of language, laws, ecology, philosophy, ceremony, and storyscape of their own and their neighbors. ...
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California's water infrastructure relies heavily on the Sacramento-San Joaquin Delta (Delta) for supply and conveyance to a multitude of users. This reliance conflicts with the ecological importance of the Delta for critical functions and services it provides as the largest estuary on the west coast of North America. At risk are entire ecosystems, which provide habitat for a diversity of resident and migratory species, and includes culturally-significant endemic species such as the Delta Smelt (Hypomesus transpacificus). Furthermore, the Delta is situated within the Miwko? cultural landscape, which is founded on the relationship between the region's Indigenous people and the ecological system. This paper illustrates the ecocultural context and significance of this landscape, which has largely been overlooked in addressing demands for water resources and influence on environmental policy and stewardship within the Delta. It provides some examples of how a more holistic view might achieve ecocultural equality based on Miwko? traditional cultural practice and law, as has been practiced and observed in this landscape for millennia.
... Custodial peoples duly align themselves normatively with the grain of this larger unfolding and manage both themselves and their environments in accordance with it. (Watson 2015;Black 2011;Rose 1992) (It is worth noting that, while consciousness of Law in this sense has long been lost to most civilizations, an echo of it remains within at least one of the major civilizations still extant today, namely that of China. The notion of Dao, one of the deepest and still living taproots of Chinese thought, presents striking parallels to that of Law, especially in the fundamental modality it prescribes, viz wu wei, or 'inaction'. ...
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Biomimicry can serve as a design template for an ecological civilization by showing how cyclical, no-waste, mutually adaptive production systems designed 'after nature' could render human industry fully 'sustainable'. However, unless the modes of praxis involved in such a reformed industrial base were also redesigned, the value-orientation fostered by the new order would remain anthropocentric. Biomimicry would accordingly result in an ecomodernist-type scenario in which society was 'decoupled' from nature, with dystopian consequences for the larger community of life. Drawing on Indigenous modalities, I explore ways in which modern industrial systems could include participatory modes of praxis that would emanate in genuinely bio-inclusive forms of consciousness and hence indeed lay the ethical foundations for an ecological civilization.
... 38 This approach accords with the doctrine that donors hold property rights in their samples that are held on bailment by the institutions -endorsed by Yearworth vs North Bristol NHS Trust. 39 Indigenous jurisprudence might well reject the suggestion that institutions and researchers have any rights in this material removed from the bodies of First Peoples, 40 [t]he argument of legitimate acquisition…is just hiding behind a technicality…It may have been donated to you or purchased by you on your side…but on our side it was plundered, stolen and taken by deceit from powerless people preyed on at their most vulnerable time. 41 The complex and rather unsatisfactory outcome of an analysis constructed in property law is tempered by the careful ethics-based approach that Australian institutions have typically adopted in practice in recent years. ...
Article
Dynamic Consent (DC) is both a model and a specific web-based tool that enables clear, granular communication and recording of participant consent choices over time. The DC model enables individuals to know and to decide how personal research information is being used and provides a way in which to exercise legal rights provided in privacy and data protection law. The DC tool is flexible and responsive, enabling legal and ethical requirements in research data sharing to be met and for online health information to be maintained. DC has been used in rare diseases and genomics, to enable people to control and express their preferences regarding their own data. However, DC has never been explored in relationship to historical collections of bioscientific and genetic heritage or to contexts involving Aboriginal and Torres Strait Islander people (First Peoples of Australia). In response to the growing interest by First Peoples throughout Australia in genetic and genomic research, and the increasing number of invitations from researchers to participate in community health and wellbeing projects, this article examines the legal and ethical attributes and challenges of DC in these contexts. It also explores opportunities for including First Peoples' cultural perspectives, governance, and leadership as a method for defining (or redefining) DC on cultural terms that engage best practice research and data analysis as well as respect for meaningful and longitudinal individual and family participation.
... By 2019, 44 of their member villages have been reconstituted as "autonomous indigenous communities. " Moreover, they have brokered space with nearly half the municipalities in the region (in San Luis [21], Sayaxché [15], Poptún [3], La Libertad [2] and San Francisco [1]), creating a precedent for another 69 or so declarations in process. As the oldest region of Q' eqchi' settlement in Petén, as well as the birthplace of several of ACDIP's core leaders, San Luis elders are now leading the next steps for cultural revitalization to reconstitute communal lands. ...
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James C. Scott’s (1976) classic work on the Chayanovian logics of peasant economy argued that less important than the amount taken was how little might be left. A similar awareness about the paucity of the “leftovers” (li xeel, in Q’eqchi’ Mayan) has inspired a peasant federation in northern Guatemala to embrace its indigenous identity through scores of village declarations of autonomy. Albeit born from a class-based organizing repertoire, the new political trajectory of this Q’eqchi’ organization still reflects Via Campesina’s broader conceptual umbrella of peasant rights, good living, indigenous spirituality, gender equity, agroecology, and the ancient right to save seed. Drawing from a participatory mapping project, fieldnotes, letters, proposals, social media, texts, and other elusive “grey literature” from seventeen years of allied camaraderie, I describe how they are resuscitating and adapting an oppressive political structure from 16th-century colonial rule into a creative political mechanism to defend their territory from 21st-century neoliberal land grabs.
... According to Anderson (1983), an indissoluble link between moral and subsistence knowledge and ecological consequences is felt if cultural and social regulations are not upheld. Though severely corroded in many places by colonialization and assimilation processes, social kinship networks still traverse a mesh of bio-cultural sui generis boundary systems (Black, 2011). Thus, access and literacy aren't sufficient conditions to benefit from being online and are only useful when all in the collective social group have the necessary devices, functionalities and onto-epistemic framework connections to leverage the benefits (Shah, 2012). ...
Chapter
This chapter aims to introduce the concept of social inequalities and how this phenomenon evolved over the years. This brief theoretical excursus introduces those basic ideas and concepts that are useful to reflect on how the advent of digital technologies might have exacerbated social inequalities. ICTs are cementing already existing social inequalities, both on a macro level, given the raise to a new digital oligarchy, and on a micro level, reinforcing inequalities between individuals. After a brief theoretical and historical excursus, this chapter looks at how the advent of technologies may become a barrier of social mobility and how, by concentrating resources and wealth in few hands, the digital revolution is giving rise to digital oligarchy.
... Ultimately, as Aboriginal Australian Christine F. Black states in her book The Land Is the Source of the Law (2010), "the Djang (primordial energy) is out of balance, and the rebalancing of that Djang is up to the individual through their lawful behavior; a behavior which patterns them back to the land" [35]. Therefore, Indigenous applications for planetary health are completely rooted in the values that ground our societies to the Land, and it is through these values that we uphold Natural or First Law that governs the planet and keeps us within sustainable planetary boundaries. ...
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Indigenous Peoples associate their own laws with the laws of the natural world, which are formally known as or translated as Natural or First Law. These laws come from the Creator and the Land through our ancestral stories and therefore, they are sacred. All aspects of life and existence depend on living and following these natural First Laws. Since colonization, Indigenous Peoples’ Natural Laws have been forcibly replaced by modern-day laws that do not take into account the sacred relationship between the Earth and all of her inhabitants. The force of societies who live outside of Natural Law has ensured the modern-day consequences of not living in balance with nature. Pandemics and global environmental change, including climate change, are all consequences of not following the Natural Laws that are encapsulated by the interconnected nature of the universe. Here we discuss Natural Law from an Indigenous paradigm and worldview which carries implications for planetary health and wider environmental movements around the globe.
... Black (2011a). © Springer Nature Singapore Pte Ltd. 2021 J. Baumeister et al. (eds.), ...
Book
This book presents and discusses a strategy which includes four approaches to dealing with the risk of sea-level rise and other water hazards. It also offers opportunities for cities to explore urban extensions such as marine estates, aquatic food production systems, new sea related industries, maritime transport developments, new oceanic tourist attractions, and the designation of additional coastal ecological zones. The urban interface between Sea and Cities generates, therefore, both burning issues and valuable opportunities and raises the question of whether it is possible to solve the former by exploiting the latter?
... In legal theory, Black (2017), a scholar trained both in the legal culture of her own community and that of the Australian settler state, has drawn from the nonwestern traditions to reimagine and pluralize jurisprudence. In what could be called an 'object-oriented jurisdiction,' Black centers indigenous legal theory not on the western subject or the state, but rather on the very materiality of 'country': the land, rivers and stories that underpin all indigenous legal activity (Black 2011). Thus, instead of teaching law as the rules that stem from a code or from a judicial proceeding, Black insists in seeing law through traditional short-stories that contain guidelines for lawful conduct. ...
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Across the arts, social sciences, and the humanities there is a growing interest in the materiality of everyday experience. Feminist engagements with the social studies of science laid the foundations for a new generation of critical thinking that took a break from the hegemony of discourse to embrace the material practices that underpin knowledge, science, and power. (International) legal history, however, has been conspicuously absent from these discussions. For many scholars and practitioners, law is still a discipline that revolves around written texts limiting our engagements with its diverse material manifestations. Instead of outlining a single approach to materiality and international legal history, in this article I review several trends of ‘new materialist’ thinking, showing how each might enrich legal inquiries. International legal scholarship, which is undergoing a moment of theoretical openness, has much to gain from the engagement with the overlapping, contradictory, and unstable insights of the renewed materialisms.
... Indigenous people in Australia exist as inhabitants and owners of a group of nations, the names of which do not resemble the word 'Australia'. Further, the lawful relations practiced within these nations are largely incompatible with the law that currently governs the inhabitants of Australia, whether Indigenous or not (Black 2011;Pascoe 2014;Patton 2000;Reynolds 1972;Watson 2014;Wolfe 2014). Additionally, the land called Australia resembles only partly what the British invaders expected would result after generations of settlement: a land largely populated by agriculture and arrogance. ...
Chapter
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In 1993, discussion began about the changing of Australia’s Constitution to reflect the existence of Indigenous people. The discussion collapsed with the ‘no’ vote in the referendum on the possible move to a republic. In 2011, an expert panel of Indigenous and non-indigenous scholars sat and recommended change for 2013. As I write, I am ashamed. In 2015, Indigenous leaders wrote to the prime minister to say they wanted to advise on the terms of that change. Then Prime Minister Tony Abbot refused the existence of a ‘black process’. At the same time, celebrated Indigenous footballer Adam Goodes was being publically admonished for performing a ‘traditional dance’ on the football field. Adam Goodes, it was said, was behaving like a black man. In line with Freud’s discussion of shame as the exposure of genitals, I suggest, something cannot be seen in non-indigenous Australia, something for which the large part of the nation feels ashamed and something for which another part of Australia is dying. This chapter is concerned with the non-act of re-writing the Australian Constitution to reflect the existence of Indigenous people as Indigenous people, that is, in the mode that they demand through the ‘black process’. I ask what is it that cannot be exposed in the contemporary nation called Australia? And what are the stakes of this exposure? The chapter will briefly map the process toward constitutional change in Australia, and examine the many sites of exposure that appeared in this process. The chapter will then consider whether Jacques Lacan is right in suggesting that one ‘never died of shame’, when in fact there is a great deal of death being produced in the efforts not to expose that which is shameful in non-indigenous Australia.
... Several scholars have started engaging with the difficulties of the legal episteme to deal with the Anthropocene's predicaments and with deeply intertwined global governance challenges, and to reimagine law and legal scholarship in a more holistic way that cuts across silos, captures the bigger picture, and opens the closures of law to multiple stakeholders, including the marginalized, the unborn, and the non-human (e.g., Kim and Bosselmann, 2013;Scott, 2013;Robinson, 2014;Gonzalez, 2015;Vidas et al., 2015;Kotzé, 2017;Viñuales, 2018;Brunnée, 2019;Lim, 2019;Brown Weiss, 2020;Kim, 2021). This has led to the development of new legal paradigms such as global law (Teubner, 1997;Yang and Percival, 2009;Walker, 2014), transnational law (Koh, 2006;Sand, 2012;Zumbansen, 2020), decolonial, indigenous and métissage law (Black, 2011;Anker, 2017;Nursoo, 2018), Third-World Approaches to (international) Law (Anghie, 2005;Chimni, 2006), and queer law (Otto, 2018), among others. ...
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The Anthropocene requires of us to rethink global governance challenges and effective responses with a more holistic understanding of the earth system as a single intertwined social-ecological system. Law, in particular, will have to embrace such a holistic earth system perspective in order to deal more effectively with the Anthropocene's predicaments. While a growing number of scholars have tried to reimagine law and legal scholarship in a more holistic way, these attempts remain siloed. What is required is a shared epistemic framework to enable and enhance collaborative intradisciplinary and interdisciplinary research and co-learning that go hand in hand with thorough transdisciplinary stakeholder engagement. We argue that the nascent concept of earth system law offers such an overarching epistemic framework. This article serves as an invitation to fellow explorers from various legal fields, other disciplines, and from a wide range of stakeholders to explore new frontiers in earth system law. Our aim is to further stimulate the study of earth system law, and to encourage collaboration and co-learning in a fertile epistemic space that we share.
... Others have critically reworked the idea in line with Indigenous knowledges to propose a grounded counter-balance to the state's absolutist claims (Simpson 2014, 11-12). Indigenous concepts of authority, legitimacy and the nature and source of law may differ fundamentally from those that are used to justify state power, and are typically less rigid, less absolute, less anthropocentric and more relational than the western political traditions that are the focus of this article (Black 2011;Borrows 2016b;Coulthard 2014, 171;Nilsson 2021). It is a premise of the argument set out here that the theoretical traditions of Indigenous peoples have authority independently of settler recognition or endorsement. ...
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The doctrine of popular sovereignty holds that the ‘supreme authority of the state’ belongs to the people, not to the political institutions exercising public power. What are the implications of this view when there is more than one people in the territory of that state? The case of Indigenous peoples highlights this question, as they are unequivocally peoples who are distinct from the majority population. This paper subjects to criticism of the received view according to which the inclusion of Indigenous peoples in democratic institutions is sufficient for the realization of their popular sovereignty. Instead, we argue that their constituent power must be recognized – the power to create and negotiate the constitutional order. The realization of popular sovereignty in settler states thus necessitates a process where the constitutional order is negotiated by Indigenous peoples and the majority population in conditions where the two parties are mutually recognized as sovereign.
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This book has attempted to highlight the historical origins of colonial education in Canada and interrogate the contemporary delivery of education in how it impacts the educational outcomes of Black, Indigenous, Latinx, and other racialized learners. We have also attempted to illuminate the role of Indigenous cultural knowledges in schools and how such knowledges can be beneficial in closing the educational gap experienced by non-dominant Black, Indigenous, Latinx and other racialized learners. We have provided local and international best practices where Indigenous Elders’ cultural knowledges are transforming and decolonizing formal colonial education through Indigenization approaches. These approaches offer possibilities for engaging Elders and their cultural knowledges in schools.
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This chapter explores the histories of colonial practices and policies that sought to dispossess, assimilate, exploit and segregate Indigenous people in the process of imposing colonial borders and sovereign jurisdictions. We elucidate how these histories surface in the contemporary imprisonment of Indigenous people. In doing so, we challenge the liminal and spatial void in which Western Criminology operates to exclude history and place.
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This chapter explores the place-based and place-centred approaches in epistemologies of the Global South that counter-world the “space, flow and mobilities” frameworks of the Global North. It argues that the diasporic representations of the modern world hold little relevance to Indigenous attachments to Country or their ongoing experiences of enforced mobility and confinement. We propose that decolonising Criminology involves re-centring place and conceiving ongoing threats provided by settler colonial “states of exception” that suspend the law to displace and subjugate Indigenous people.
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Artificial Intelligence (AI) provides us with myriad new opportunities and potential on the one hand and presents global risks on the other. If responsibly developed, AI has the capacity to enhance wellbeing and provide benefits throughout society. There has been significant public and private investment globally, which has been directed toward the development, implementation and adoption of AI technologies. As a response to the advancements in AI, several countries have developed national strategies to guide competitive advantage and leadership in the development and regulation of AI technologies. The rapid advancement of AI technologies and investment has been popularly referred to as the ‘AI race’. This report places society at the core of AI development and explores issues specific to Australia and New Zealand such as our workforce, our education system, cultural considerations and our regulatory environment. It identifies areas of importance to Australia and New Zealand. Enlisting expertise from Fellows of Australia’s Learned Academies, the Australian Academy of Health and Medical Sciences (AAHMS) and the Royal Society Te Apārangi (New Zealand), the ACOLA report provides a comprehensive interdisciplinary study to map and establish a detailed understanding of the opportunities, benefits and risks presented by AI.
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Indigenous and decolonising geographies should be unsettling and challenging to the ontological foundations of the geographical discipline. Yet despite many scholars recognising and arguing for the need for these perspectives, Indigeneity remains marginal and Indigenous knowledge has been denied academic legitimacy within geography. Using ‘doings’ as an active, emergent, and evolving praxis, this paper examines how we can do Indigenous and settler geographies better. It illustrates how knowledge, emotions, feelings and intuition only come into being through the doings of the body with other bodies, places, and objects, including non-humans. Action and thought are indistinguishable, feeling is knowing, and the world becomes known through doing and movement. In these doings, place – particularly the land and sea – is an active agent in the making of beings and knowledge. By focusing on active doings in place, and acknowledging the temporalities of Indigenous ontologies, geographers are better able to support political and everyday struggles, situate our work in relation to colonialism, recognise and value everyday practices of resurgence, and spend time building relationships. ‘Doing’ geography differently would decentre academics as the source of knowledge production, employ more diverse voices in our teaching and provide embodied and material resistance to colonialism and neoliberal capitalism.
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The Rainbow Snake is a universal Indigenous Australian living creature responsible for the creation and protection of waterways. Countless generations of traditional owners have cared for the sacred ancestral being; it is a spiritual guardian. The ancient creation songs and stories shared across the continent create meaning and purpose for our collective responsibility in managing the health and survival of the rivers, wetlands, springs, billabongs, floodplains and soaks. This chapter presents an insider view about how to promote remote Aboriginal people’s wellbeing through a co-operative regional earth-centred governance model. The story reveals a powerful policy and investment approach to the planning and development of regional governance and showcases the unique cultural and environmental values of the Fitzroy River, and its Indigenous people as having local, national and international significance. The central theme is the responsibility of Indigenous leaders to facilitate knowledge building, which requires sharing a deeper understanding of continuing colonisation and the collective responsibility, as Australians, for managing water.
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This article critically analyses the novelty of the legal personhood of nature and, in particular, whether it signals cracks in the anthropocentrism of Western law. Drawing upon the work of Michel Foucault and Roberto Esposito, it contributes to the theorisation of environmental personhood by focusing on the biopolitical nature of personhood itself. It does so by engaging in a critical examination of the attribution of legal personality to the Whanganui River in Aotearoa New Zealand as the most detailed and sophisticated legislative example to date of legally personifying a natural thing. Working through three key conceptual terms in Foucault’s and Esposito’s work (population, personhood and immunisation), we demonstrate the way in which a biopolitical analysis raises questions about whether ascribing legal personhood to nature addresses anthropocentrism and its effects. We draw attention to the risk of ascribing legal personhood to nature, which is that, instead of signalling an ontological shift in the Western anthropocentric understandings of environment, it operates within and reinforces the dominant legal worldview – unless, that is, the granting of personhood to nature calls into question the dominant paradigm of personhood itself. The article concludes by suggesting alternative ways of developing human understandings of, and relationship with, nature.
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La cartilla propone algunas ideas para que los pueblos indígenas y afrodescendientes fortalezcan la creación de protocolos propios de consulta previa, de modo que encuentren mecanismos para hacer respetar su derecho fundamental a la libre determinación y a su territorialidad. En las últimas décadas se ha reconocido jurídicamente el valor inmaterial y espiritual que los pueblos indígenas dan a los territorios que habitan. Sin embargo, a su vez, el modelo extractivista se ha fortalecido y varios de sus actores han intentado apropiarse de una parte o la totalidad de dichos territorios. La extracción de recursos naturales a gran escala no solo ha despojado a varias comunidades de sus tierras, sino que ha socavado su autodeterminación política y jurídica, así como su identidad cultural. Por esta razón y como una manera de salvaguardar los derechos, la vida digna y la integridad de la relación de estos pueblos con sus territorios, se ha procurado desarrollar su derecho a la consulta previa, libre e informada. Es por ello que escribimos una cartilla para explicar las consecuencias a largo plazo que tienen su desconocimiento. A través del lente de los estándares de los derechos de consulta y de consentimiento libre, previo e informado, explicamos la lógica bajo la cual los actores del sector extractivo toman sus decisiones. De esta manera vimos cómo su actuar se ha traducido en nuevas violaciones a los derechos humanos de los pueblos indígenas y afrodescendientes, en especial a sus dimensiones territoriales y organizativas; a su integridad física y cultural; y al respeto de las decisiones de sus comunidades. En ese sentido, la función de la cartilla es profundizar en el derecho a la libre determinación de estos pueblos a partir de una visión de la interculturalidad en donde lo indígena pueda aportarle a lo no indígena. Es usual que la interculturalidad se presente desde los términos no indígenas, así que este documento aspira a invertir la relación en la que se trata este tema. Como tal, esta cartilla promueve la necesidad de aplicar la Declaración sobre los Derechos de los Pueblos Indígenas, y de tomarse en serio el punto de vista de los pueblos indígenas y afrodescendientes. Por lo tanto, proponemos complementar a la fundamentación de sus sistemas políticos y prácticas culturales para que se les otorgue validez jurídica y material en el orden nacional e internacional. De ese modo, formulamos una coordinación entre las jurisdicciones indígenas y la jurisdicción del Estado. Esta perspectiva intercultural permitirá a los actores no indígenas comprender y validar jurídicamente los argumentos de los pueblos étnicos. Creemos que si la voz de estos pueblos es realmente escuchada, sus derechos fundamentales serán protegidos.
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The emerging field of comparative political theory (CPT) seeks to expand our understanding of politics through intercultural dialogues between diverse systems of political thought. CPT acknowledges diverse modes of political understanding, yet the field is still methodologically focused on textual forms of political practice and learning. I argue that the privileging of political literature in CPT has been inherited from orthodox political theory and the history of political thought and that the prioritizing of text over oral and enactive practices places constraints on intercultural dialogue. First, methodological focus on texts inhibits dialogue with Indigenous traditions that do not prioritize text in the same way or to the same extent in the reproduction of political culture. Second, the incorporation of oral traditions tends to conflate orality with text in ways that obfuscate the contribution of enactive performance. One result of these methodological oversights is that CPT risks recapitulating some of the historical exclusionary logics that it seeks to overcome.
Article
Indigenous–environmental relations in Australia have a difficult history. Two examples from fieldwork in northern Australia – the Wild Rivers campaign in Queensland and contestations over Walmadan (James Price Point) in Western Australia – facilitate exploration of the contrast between the sustained, multiple and detailed efforts that environmental groups have put into black–green relations, and the public perception that environmentalists do not care about Indigenous people. The multiple competing political narratives of different Indigenous activists and environmental organisations around notions of environment and economy are identified. This detailed analysis suggests that environmentalists need to advocate for a peopled-landscape and all activists must engage in a more nuanced discussion and understanding of diverse forms of economy.
Book
This book is the fruit of Antonella Riem’s thirty-year study of Australian literature and is inspired by the work of anthropologist and social scholar Riane Eisler that the international Partnership Studies Group (founded by Antonella Riem in Udine in 1998) applies to the study of world literatures in English, languages and education. The texts analysed in this book represent an interesting sample of how different Australian authors of diverse epochs share a desire to denounce the dangers of colonial/dominator/imperialism while representing another more human and caring possibility, a different, more partnership-oriented world-view.
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In England, Australia and Canada, there are records of early attempts to establish law reform machinery dating as far back as the fifteenth century. The systematic process of law reform achieved in the nineteenth century was in the form of temporary and part time law reform commissions. The first formal body established to carry out law reform was the 1934 Law Revision Committee in England appointed by Lord Chancellor Sankey. The institutional Law Commission was established under the Law Commission Act of 1975 to be an independent and permanent office staffed by lawyers and support staff. The early literature on law reform offers useful insights for this book on how the forces of government, the bureaucracy and civil society transform law reform machineries and agencies at a given place and time.
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This chapter considers how the operation of the “third space” (Bhabha 1994) between the Global South and the Global North is enlivened to deepen Indigenous place-based and place-centred forms of political, social and legal organisation. It asks whether sentencing—as a site of punishment, rehabilitation and integration—can do more than further objectives of state law and order, and instead augment Indigenous social orders? Can Indigenous innovations in sentencing embody inter-cultural struggle and negotiation or are they at the mercy of state control? It suggests that Indigenous Law and Justice planning, rather than sentencing, exhibits indicia of inter-cultural struggle that countermands the dictates of the state and white laws. Whatever its form, inter-cultural spaces remain fragile to the colonial project and its persistent drive for hegemony.
Technical Report
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This project examined the potential that artificial intelligence (AI) technologies have in enhancing Australia’s wellbeing, lifting the economy, improving environmental sustainability and creating a more equitable, inclusive and fair society. Placing society at the core of AI development, the report analyses the opportunities, challenges and prospects that AI technologies present, and explores considerations such as workforce, education, human rights and our regulatory environment.
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This special Forum explores some key aspects on Italian migrants’ relationships with First Nations people in Australia, including their complicity in settler colonialism and their solidarity with Indigenous struggles. Taking into consideration the Australian context, this forum aims to instigate an intellectual dialogue around the need to decolonise Italian migration history worldwide. A decolonising approach requires not just the recognition that millions of Italians have migrated to settler colonial societies, but also a theoretical and methodological reflection on how migration history needs to be informed by Indigenous epistemologies. The forum is divided in six parts. After a methodological introduction by Francesco Ricatti, the artist Paola Balla reflects on her life and work as a Wemba-Wemba and Gunditjmara woman and artist, whose father and paternal family came to Australia from Calabria. Her contribution emphasises the need to relearn the history of settler colonial nations from the perspective of Indigenous women. Federica Verdina and John Kinder then explore from a linguistic perspective the anthropological discourse in the Italian language concerning Aboriginal people in the late nineteenth and early twentieth century. The next contribution, from Matteo Dutto, focuses on the visual and cinematic representation of the encounters between Indigenous and Italian migrants in Australia. Maria Pallotta-Chiarolli then reflects on the complex methodologies that are required when studying personal relationships between Italian migrants and Indigenous people. The forum is concluded by Joseph Pugliese’s personal reflections on his scholarly and activist involvement in decolonial practices within the Australian context.
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On 1 December 2019, over one hundred Aboriginal nations performed ancestral and creation dances in synchrony across the Australian continent. One of the communities that danced was the Anaiwan nation from the north-eastern region of New South Wales, Australia. Since 2014 I have been working with Anaiwan people in a collaborative activist research project, creating and maintaining an Aboriginal community garden on the fringes of my hometown of Armidale as a site for land reclamation and decolonising, multispecies research. The community garden is adjacent to the site of the old East Armidale Aboriginal Reserve, where over one hundred dispossessed Aboriginal people were forced to live on the municipal town garbage depot in the mid-twentieth century. This paper positions both the Nation Dance 2019 movement, and the Armidale Aboriginal Community Garden, as rhythmic events that activate Aboriginal Law and sovereignty that is held enduring in the land but that has been buried alive by the settler-colonial state. Focusing on the tensions between deep Indigenous ancestral temporality and colonial territoriality, I argue that the emergence of the Anthropocene reveals a dangerous dissonance between the rhythms of Aboriginal Law patterned through present-day Australian environments and the grid-based structures of colonial governance imposed upon them.
Article
Traditional custodians of the Martuwarra (Fitzroy River) derive their identity and existence from this globally significant river. The First Laws of the Martuwarra are shared by Martuwarra Nations through a common songline, which sets out community and individual rights and duties. First Law recognizes the River as the Rainbow Serpent: a living ancestral being from source to sea. On 3 November 2016, the Fitzroy River Declaration was concluded between Martuwarra Nations. This marked the first time in Australia when both First Law and the rights of nature were recognized explicitly in a negotiated instrument. This article argues for legal recognition within colonial state laws of the Martuwarra as a living ancestral being by close analogy with the case concerning the Whanganui River. We seek to advance the scope of native title water rights in Australia and contend that implementation of First Law is fundamental for the protection of the right to life of the Martuwarra.
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This chapter is more of a commentary than straight discourse. It is a winding path of storytelling and discourse of considerations on the influences that are shaping the public discourse around sea rise which in turn influences risks and opportunities when planning the urban tactics for flooding in cities such as the Gold Coast. The Gold Coast being the traditional lands of my mother’s ancestors.
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Directed by Rizal Mantovani, the film 5cm (2012) tells the story of a group of five young Jakartans united by friendship. To test the strength of their friendship, one group member, Genta, suggests that they refrain from seeing each other for three months. At the end of this no-contact period, they climb Mount Semeru, the highest mountain in Java, and prove again the resilience of their comradeship. It is a motivational film targeted at young nature lovers which reminds the Indonesian youth of the need to love their country and its beautiful landscape. Drawing on each member’s testimony of love and devotion to the Indonesian nation-state after witnessing first-hand the breathtaking wonder of Mount Semeru, I argue that the film demonstrates the subsuming of the natural environment under the power of the state, using Yi-Fu Tuan’s conception of romantic geography. This analysis demonstrates how portraying nationalism romantically advocates a superficial allegiance to the nation-state and negates the sovereignty of the land.
Article
The ‘Living Waters, Law First’ water governance framework centres Living Waters, First Law and the health/well-being of people and Country. The framework is based on a groundwater policy position developed by the Walalakoo Aboriginal Corporation (WAC), the Nyikina and Mangala peoples’ native title corporation, in the West Kimberley, Western Australia in 2018. This article celebrates Traditional Owner’s pragmatic decolonising strategies. It explores the emerging conceptual challenges to the status quo by comparing the Living Waters, First Law framework to Australia’s settler state water governance framework, represented by the National Water Initiative. Bacchi’s ‘what is the problem represented to be’ approach is used to interrogate the underlying assumptions and logics (2009). We find that there are incommensurable differences with First Law and the Australian water reform agenda. Yet, our analysis also suggests ‘bridges’ in relation to sustainability, benefits and responsibilities could promote dialogues towards decolonial water futures.
Article
Ontological parochialism persists in International Relations (IR) scholarship among gestures towards relational ontological reinvention. Meanwhile, the inter-polity relations of many Indigenous peoples pre-date contemporary IR and tend to be substantively relational. This situation invites rethinking of IR's understandings of political order and inter-polity relations. We take up this task by laying out necessary methodological innovations to engage with Aboriginal Australia and then showing how conventional and much recent heterodox IR seek to create forms of ‘escape’ from lived political relations by asserting the powerful yet problematic social science mechanism of observer's distance. This demonstrates a need to take Aboriginal Australia as a system on its own terms to speak back to IR. We next explain how Aboriginal Australian people produce political order on the Australian continent through a ‘relational-ecological’ disposition that contrasts with IR's predominant ‘survivalist’ disposition. The accompanying capacity to manage survivalism through relationalism provides an avenue for engaging with and recasting some of mainstream IR's survivalist assumptions, including by considering an Aboriginal approach to multipolarity, without attempting ‘pure escape’ through alternative ontologies. We thus argue that while it is necessary to critique and recast dominant IR, doing so requires putting dominant IR and Indigenous understandings into relational exchange.
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Many people have called for Integrated Fire Management that effectively harnesses the power of fire to achieve land management goals. Often this includes using fire, and certainly, it involves managing both short- and long-term effects of fire informed by an understanding of both people and place. In eight case studies from around the globe, local experts describe successful variants of integrated fire management. Their stories illustrate innovative, proactive approaches to managing fires and the ecosystems, including people, in which those fires occur. Integrated Fire Management is different in each location, but it is always focused on long-term effectiveness in meeting strategic objectives, and the most effective practitioners are constantly listening, learning, and adapting while working with many different people. In this way, the case studies illustrate that effective fire management is informed by the scientific principles you’ve learned in prior chapters of our book, Fire science from chemistry to landscape management, but also depends on being flexible and adaptive to local and changing conditions. Such management uses fire as one of the tools to increase the benefits of fire while limiting the negative effects of fire in achieving social-ecological ecosystem goals strategically.
Thesis
Through a socio-legal and historical exploration of ecological controversies, this dissertation attempts to demonstrate the following thesis: that Western legal systems have historically tended to exclude the ecological practices and traditions of indigenous and other marginalized communities; and that the emergence and progressive structuration of discourses and legal regulations aiming at the protection of the environment have not resulted in a structural questioning of these dynamics. Yet, despite these patterns of discrimination within the law, our inquiry shall reveal that there exist a variety of avenues that could allow more inclusive legal arrangements, recognizing the ecological pluralism inherent to every human society. Can marginalized minorities, and most notably indigenous communities, be prevented from hunting endangered species, living in protected areas or using psychoactive substances, when these prohibitions violate their core ecological values? Under what conditions can legal institutions find a way beyond ethnocentrism and articulate ecological pluralism despite persisting colonial legacies? These are among the questions that this dissertation endeavors to address.
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The proposition is this: four ‘performance writers’, each with their distinctive practice, use the digital and material page as a space for collaborative performance-making and cooperative thinking. We enter the page as studio. Page as interval. Page as middle and entrance and ending and overlap. We approach writing as dancing (Pollitt). As continuation, as doing, as inside renderings of emergent score, tone, and timing. In this way, rather than writing about another process of performance-making, the writing itself becomes a process of collaborative making, at the same time as it reflects on making collaboration. As remote practitioners attending through the digitas, we encompass the griefs, gifts, and challenges encountered during a time of global pandemic. We oscillate through alternate time zones to form and reassemble, perform our ensemble, with new currencies of exchange.
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This article displays the idea of indigenizing international law by recognizing indigenous law as law. Transforming international law becomes possible by directing indigenous jurisprudences to it —I call this process inverse legal anthropology—. Based on inverse legal anthropology, i present a case study on the ongoing genocide of Colombian indigenous peoples in the age of the global ecology of the Anthropocene. I also explain the political consequences of valuing indigenous cosmologies regarding their territories. While mainstream representations of indigenous territories include the topographic and biologic dimensions of the earth’s surface, they forget the pluriverse of organic and inorganic beings that make and negotiate their social living together with indigenous peoples, and their ecological and spiritual relationships.
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This chapter introduces three sets of alliances that centre the multiple reflections around which our analysis of the Anthropocene revolves. We visually map the alliances and their movements through a kaleidoscopic representation. Cycles of ruin and regrowth, world-making and storytelling circulate through the alliances. One set of alliances explores the intricate relationship between fire and plants. The embodied and emotive tension that emerges from this analysis simultaneously exists between plants and people—another set of alliances. Embodied, emotive and productive tensions also span a third set of alliances—the powerful and, at times, troublesome alliance between people and fire. The chapter also posits the book’s dual purpose of considering the agencies and entanglements of fire, plants and people whilst simultaneously challenging our own comfortable defaults. It poses a challenge to think differently together by opening up alternative ways of witnessing and expressing the embodied and emotive affects of living with plants, fire, ruin and regrowth. This challenge rests in our desire to deepen understandings of belonging and existence by entangling contemporary visual art with geographical narratives in the context of climate change. This highlights the methodological importance of the visual and the sensory in storying and world-making.
Article
The nascent spatial turn in peace and conflict studies is a promising development that expands conceptual resources and offers useful correctives to existing scholarship. However, the turn to space and place tends not to adequately emplace itself (including on its own European-derived terms) or sufficiently engage the socio-spatial difference of diverse peoples. Instead, a de-contextualised knower is invited to apply a new set of mobile scholarly tools in various settings without seriously considering diverse peoples’ conceptualisation and operationalisation of place in socio-political ordering. Long-standing Aboriginal Australian approaches to place, meanwhile, indicate the diversity and sophistication of approaches to space and place. They furthermore show that western political ontology – including the figures of the individual and the state embedded in much dominant scholarship – may not be relevant in many settings in which peace and conflict scholarship is undertaken. Realising the full potential of the spatial turn requires grappling with the relational emplacement of the knowing subject and the varied ways in which place configures socio-political order both for diverse peoples ‘in the field’ and in the centres of dominant forms of knowing in the Global North.
Book
In this collection of illuminating conversations, renowned historian of world religions Huston Smith invites ten influential American Indian spiritual and political leaders to talk about their five-hundred-year struggle for religious freedom. Their intimate, impassioned dialogues yield profound insights into one of the most striking cases of tragic irony in history: the country that prides itself on religious freedom has resolutely denied those same rights to its own indigenous people. With remarkable erudition and curiosity-and respectfully framing his questions in light of the revelation that his discovery of Native American religion helped him round out his views of the world's religions-Smith skillfully helps reveal the depth of the speakers' knowledge and experience. American Indian leaders Vine Deloria, Jr. (Standing Rock Sioux), Winona LaDuke (Anishshinaabeg), Walter Echo-Hawk (Pawnee), Frank Dayish, Jr. (Navajo), Charlotte Black Elk (Oglala Lakota), Douglas George-Kanentiio (Mohawk-Iroquois), Lenny Foster (Dine/Navajo), Tonya Gonnella Frichner (Onondaga), Anthony Guy Lopez (Lakota-Sioux), and Oren Lyons (Onondaga) provide an impressive overview of the critical issues facing the Native American community today. Their ideas about spirituality, politics, relations with the U.S. government, their place in American society, and the continuing vitality of their communities give voice to a population that is all too often ignored in contemporary discourse. The culture they describe is not a relic of the past, nor a historical curiosity, but a living tradition that continues to shape Native American lives.
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This article discusses the unasked and unanswered research questions on the educational status and experiences of native women. It summarizes what little is known about three categories of native women (undergraduate students, graduate students, and professionals) and suggests necessary starting points for embarking on a research agenda. In addition, this article advances tentative explanations for the current status of research on the education of native women in the United States. 1988 American Anthropological Association
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To address American Indian underrepresentation in New Mexico's gifted and talented education programs, the Santa Fe Indian School investigated Keresan Pueblo communities' perceptions of giftedness within their own cultural context. In contrast to the mainstream individualistic concept of giftedness, the Keresan Pueblo concept focuses on the sharing of a person's gifts and talents with the community. (Author/SV)
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This essay provides a gloss on the relationship between the common law and the ‘law of the land’. It does so by turning attention to the technologies and identifications that continue to give Australian jurisdiction its place. These relations repeat the long pattern of the common law ordering of colonisation. They also provide the governmental conditions of legal responsibility for settlement.