Law Sites Revisited: Looking at Differences
Barbara Nicholson
Wadi Wadi People
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This paper will argue that the differences that exist between Western
Societal Law and Law making, and Aboriginal Customary Law and Law
making, can be understood in a framework of landscape and the ways in
which it is used. While these two bodies of law are diametrically
opposed to each other and incompatible in essence, the general theme of
the argument rests in differences between sites of imported law and
sites of indigenous law.
Deviating from the sociological theories of Durkheim and Weber the
material in this paper is largely gathered from my own observations and
cultural learning, and seeks to provoke thought rather than offer
solutions.
Firstly, I want to discuss the Dreaming, its origins, its ownership
and continuity, and how it governs all aspects of Aboriginal life. In the beginning the Ancestral Spirits left their
places of abode in the Dreaming and travelled the earth. As they made
their way across the surface of the earth they carved out gullies, and
valleys and river beds, contouring the landscape with the displaced
earth which then formed hills and mountains. They brought with them the
blueprint material for all living things and imbued the features of the
land with it so that the land itself gave birth to all the animals,
plants and very importantly, the people. Because of this, the people and
the plants and the animals are all one, are all earth and through the
earth all have spiritual links to each other and to their origins in the
Dreaming. Thus the Dreaming Spirits created the physical landscape to
house their living forms, and formed the features of that landscape and
positioned all the living things in safe places within their specific
ecosystems. They then allocated different spaces to different groups of
people, endowing them with the sacred trust of custodianship of their
allocated land area together with all things, animate and inanimate
within it, through a complex system of kinship and totemic symbolism, in
short, inscribing the Law in and on the land.
Having completed their creation journeys, the Ancestral Spirits then
called the people together with all other living things and gave them
the Law. Bound up in the Law are all the rituals of kinship, totemism,
marriage, hunting, gathering, medicine, education, parenting, avoidance
and non-avoidance relationships and ceremony. Each individual is given
his/her own particular set of totemic symbols according to their birth
place and kinship placement. I should point out here that we did not
previously refer to this to this as totemism, but did, and still do,
call this 'skin stuff', and an individual must be given his or her skin
stuff in order to validate their relationship to and within the group.
Go to top of page These totems might be animate or inanimate, and it is that person's
responsibility to care for the gifts in ways that protect them from
depletion and degradation. People thus become custodians of their totems
and by extension, the laws governing them. Totemic relationships also
govern relationships within the group, and with other groups, they
define which are avoidance and which are non-avoidance relationships.
The law is passed down from generation to generation through the oral
tradition in an extensive initiation process, which might take many
years to complete, in places that are known to be sacred and all of the
people are agents of the law, owning the rights and responsibilities for
its continued existence. The business of the Dreaming
then becomes a continuum that is eternal and has no ending, is circular
not linear, is spatial not temporal, so that yesterday is as relevant as
today, and so that even this event will become part of our Wadi Wadi
Dreaming. The law is ‘socialistic’ not
‘capitalistic’; is communally owned not privately owned; and
it is immutable, that is, not subject to change by the ruling elite,
politicians or judges.
This brings me to a crucial theme of this paper, and that is to do
with law sites. The kind of sites where laws are passed on are often
communal gathering places, which you may understand as 'corroboree'. At
these gathering sites communal laws are transferred and reinforced. All
of the appropriate people participate in the learning process. Other
sites are secret/sacred initiation sites which may be known to you as
'Bora Ground/Rings'. If the business is of a secret/sacred nature, that
is, men's or women's business, then only men or women will be permitted
to attend, these sites are out of bounds to inappropriate people and are
usually only accessed by appropriate people during times of ritual and
ceremony. While I may not reveal the exact location of such extant
sites, I am able to indicate the kind of places that are traditionally
used for these purposes.
These sites may reasonably typify the kind of place that might be
dedicated to secret law business. Protected against easy access by the
natural barriers of elevation and water, they are ideally situated for
the very important secret rituals of initiation. The cave art records
some of the creation stories of the Wadi Wadi people and is an important
bona fide declaration of sovereignty over our land.
The area provided a rich source of food, water and shelter, all under
the watchful eyes of Grandfather mountain, Mt. Kembla, and Grandmother
mountain, Mt. Keira, sacred origins of our Dreaming paths. It was a
perfect site for large gatherings of people and was no doubt utilised to
the fullest extent. Importantly, the sites do not assume an artificial
dominance over the landscape but are defined within it by the natural
features of the environment and by the abundance of resources. In
essence, the sites are consumed within the landscape. The availability
of resources is a very important factor precisely because the ceremonies
may extend over several weeks and sustenance must be maintained. Sadly,
because colonisation has managed to achieve in two hundred years what we
could not even imagine in forty thousand years, we can no longer use
this site. Go to top of
page The impact of colonisation has wrought stark change to the physical
landscape. The introduction of heavy industry to the area has created
irreparable damage, the caves are cracking and sinking due to mine
subsidence and Tom Thumb Lagoon is now an unrecognisable cess pool of
steelworks and industrial pollution.
And of course colonisation brought a new system of law to the land
which in many ways has had a similar polluting effect on the spiritual
landscape of the Dreaming. To illustrate these two points I want to
take a look at the site of Port Kembla Court House, and the architectural
representation of that new system of law.
Contrary to the Indigenous experience of Law sites blending into the
natural environment, courts, as sites of Western law, are frequently
built in elevated locations so that they dominate the physical space.
They hence form part of an artificial environment and by virtue of their
imposing architecture, proclaim an authority over the people.
The more modern style of the Port Kembla court building deviates from
this frequently used style of court architecture. Built in 1966/67, it
broke with the tradition of court architecture in its unassuming edifice
and even followed the fashion for the residential construction of the
time by using clinker bricks. The court does however, have an elevation
above sea level but nonetheless competes for recognition in the built
environment.
Situated on a hill and at the gateway to
heavy industrial area adjacent to a busy cargo port, overlooking the Tom
Thumb Lagoon, the building is a modern, single storey, dark brick
edifice which disappears into the industry scape. When the court was
built heavy industry was already well established in the immediate
environment. The architectural design of the building appears to subdue
itself to the might of heavy industry, as if not wanting to compete for
dominance in the built environment.
Heavy industry overpowers the landscape, symbolising by its
architectural dominance over the court that a shift of ownership of
social control has occurred: that industry itself now sets the rules for
societal behaviour. The evidence is there in the harbour port, the coal
loader, the grain terminal, the steel manufacturing plant, the tin plate
mill, the copper smelter and so on.
These industries have the power to operate or not, employ or
retrench, to dictate (or at least influence) policies concerning levels
of pay for workers and working conditions. They have an ability to
disregard environmental protection measures and to immunise themselves
against significant penalties for ecological degradation. In short,
industry seems to have the power to govern the lifestyles, health,
wealth and well being of the population as well as the state of the
environment. Go to top of
page This raises some issues about the impact of the built environment on
the public psyche, and raises the question of whether this means the
court has been replaced as the people’s representative site of justice,
or indeed as a site of social control, by industrial capitalism? While
I acknowledge the end responsibility will be played out within the
confines of the judicial system, the location (and architecture) of this
particular courthouse within the heavy industry landscape could well
lead to speculation about western law and its ownership. Western Law, Its Ownership, Continuity, Origins and How it Governs
The historical origins of the dominant imported law are firmly
entrenched in the traditions of the colonising powers and quickly became
the instrument through which Aboriginal people were dispossessed, and,
just as quickly, these colonising powers overrode the rich laws of
Indigenous Australia. This immediately set the pattern for the continued
ownership and enforcement of law in this country. A clear example of
this is in the High Court’s 1992 ruling in the Mabo case. This
judgment was made by the Full Bench of the High Court, which consists of
seven judges all of Anglo/European descent: there are no Aboriginal judges
on the High Court. The ruling was made on precedents of English Law set
in times prior to the establishment of Australia as a colony, but
Aboriginal Law, set in the Dreaming over forty thousand years ago, was
discounted as a valid participant in the decision making.
Ownership of Western Law, unlike Aboriginal Customary Law, is not
invested in the people en masse, only an elite number of people
‘own’ the rights and responsibilities of instituting and
implementing the law. Politicians and court judges fill that role in
Western Law and each are supported by a plethora of service departments
and organisations whose members use the very latest in
technological/electronic surveillance and intervention, coupled with the
most sophisticated weaponry the end of this millennium can provide.
The way in which Western law governs society differs greatly from the
indigenous experience. In the Western paradigm, Courts administer
retributive justice and offenders are exiled from the society of family,
friends and neighbours for lengthy periods of time. Indigenous Customary
Law focuses on restorative justice where an offender is brought to a
realisation of error and is helped through this by the support of family
and friends.
As agents of social control, parliaments often enact impossible,
horrendous, even inhumane laws. These Acts are often subject to
amendment, viz the Howard Government's proposed amendments to the
Racial Discrimination Act and 1998’s amendments to the Native Title
Act. In neither case, that is, in the courts or in parliament, are the
Customary Laws of Aboriginal people considered, and even though some
attempt is being made by Western Law in remote Aboriginal communities to
embrace elements of Customary Law in civil matters, these efforts are
being met with strong opposition from the dominant non-indigenous
society.
In conclusion, I’ll briefly outline the key points of difference
between the two Law systems:
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page
References
1Eugene Von Guerard,
View of Lake Illawarra with distant mountains of Kiama, 1860
oil on canvas
Wollongong City Gallery Collection
The George and Nerissa Johnson Memorial Bequest.
The 'Tom Thumb Lagoon' is a prime example of a communal gathering place
and was an actual site of Law giving. This is how it looked in pre and
early contact periods. With a clear outlet to the sea, and connected to
a series of wetland areas westward beyond what is now the coal loader,
the inner harbour, Lysaghts, the Tin Plate Mill and the BHP slag dump.
Image has been slightly cropped for editing purpose with permission.