When I read this week that Tony Abbott and John Howard will hear no talk of a treaty with Aboriginal Australia, my first thought was 'Who listens to these blokes from ancient political history?'
Abbott conceded that it is important to recognise Indigenous Australians were here first, 'But once it goes beyond that I think you open up all sorts of other things.' That is true, and those other things to be opened up are incredibly legally exciting and relevant to our times.
At the moment Native American tribes gather in North Dakota, USA to protest against the construction of an oil pipeline that threatens the Missouri river as well as sacred burial and cultural sites. At the time of writing private security firms had used pepper spray and dogs against protestors, or more correctly named, protectors.
Protectors attempted to stop bulldozers from destroying land on the basis that the Standing Stone tribe was awaiting the outcome of an application in the Federal Court for a legal injunction to cease work. Between 1779 and 1871, the US entered over 500 treaties with Native American tribes, all of which have been broken or nullified.
Meanwhile in New Zealand the Whanganui river is becoming a legitimate legal entity. In a marriage between Maori and Western settler law the river is on the way to being recognised as possessing legal obligations and rights on its own terms.
This legal innovation is a long awaited precedent for those seeking environmental justice across the world. Nature, in the form of a river, can be heard in law based on its own life, needs and rights. River guardians, protectors, are appointed to articulate for the river. The foundation of such legal innovation is in the Treaty of Waitangi and it has been a long, slow and relatively quiet process.
These two legal events, one urgent and confrontational, the other an innovative peace compact between nature and human governance, illustrate the crossroads that environmental law, and law generally, faces in the Anthropocene. And they both focus on recognition of indigenous jurisprudence and the importance of treaties being taken seriously.
Across the world thousands of cases are being heard against perpetrators of environmental pollution and destruction. Concurrently pre-emptive contracts of peace, like the NZ legal form, emerge.
"Instead of viewing a treaty as giving something up, ceding authority or threatening the skeleton of common law, a treaty could gift the Australian legal system with deep principles of environmental justice. "
These are being created by local councils drawing up ordinances to declare their human communities exist within reciprocal legal relationship with their environmental locale. A jurisprudence is appearing across numerous jurisdictions which recognises the duties and obligations humanity, governments, corporations and communities owe to the Earth. More than ever before nature enters courtrooms demanding to be recognised on its own terms.
At the same time, confrontational sites like North Dakota increase in intensity and frequency and urgent legal action is being taken. Also indigenous environmental advocates, like Berta Caceres, are murdered for articulating the essential truth that humanity is dependent upon the Earth. The emerging environmental jurisprudence has powerful enemies that can move faster than legal evolution.
Despite incredible people labouring against the tide, environmental law in Australia is emaciated compared to equivalent jurisdictions. New Zealand's capacity to be legally innovative and Australia's lethargy around both human and environmental rights reflects different state foundations. While there are many difficulties with the Treaty of Waitangi, it has gifted New Zealand with a legal continuity not founded on abstract lies. Law that evolves based on lies and wilful historical blindness is dangerous and retards healthy legal growth. Law relies on historical continuity to make good judgements. Coherent development is vital for the health and legitimacy of any legal system.
Law built upon terra nullius, and since Mabo lacking in serious legal reconciliation between the Western settler law and Aboriginal jurisprudence, is a contradiction too great for any system to bear. We witness the symptoms of this almost daily in Australia: from forced removal of Aboriginal communities to the shocking continuation of deaths in custody. Compromises about the truth of the state's foundations are like viruses, and end up contaminating criminal justice, public health systems, elections and opinions. This creates symptoms like riots, pepper spraying of protectors and legal decisions that perpetuate injustice.
At this ecologically historical juncture racism, including institutional racism against a whole canon of law, is suicidal. All Australians, and the land, desperately need juridical protection from environmental injustice. Clear and strong recognition of Aboriginal jurisprudence is essential in order to avoid the Anthropocene playing out in Australia as a crime scene of geological proportions.
The fear around a treaty with Aboriginal Australians, and preference for constitutional recognition only, has legal consequences. For treaties to be effective requires commitment, hard work and faith in slow change such as the New Zealand example illustrates. However the dignity and legal coherence that follows can build robust systems of justice. Peace treaties have been vital in world history and the Australian fear of this ancient and respected legal form smacks of racism. Instead of viewing a treaty as giving something up, ceding authority or threatening the skeleton of common law, as New Zealand illustrates, a treaty could gift the Australian legal system with deep principles of environmental justice. Aboriginal jurisprudence has a rich, powerful and, despite colonisation, continuous legal relationship with Country absent from the current law. A treaty is about negotiating the terms of coming together in equal recognition. And Victoria is already on the road to forming one.
The emerging international jurisprudence is powerful and not exclusive to indigenous peoples. Even if Australia resists, this rising jurisprudence will impact international law and norms affecting trade and diplomacy. Australia faces a choice between perpetual confrontational and violent symptoms or embracing creative legal innovations that can extend from a treaty, or an equivalent recognition of Aboriginal jurisprudence. And with our neighbour New Zealand leading the way on creative legal innovations, which will influence many jurisdictions, dismissal of a treaty is wilful historical blindness detrimental to the Australian legal system's integrity and the land itself.
Dr Bronwyn Lay worked as a lawyer in Melbourne before moving to France where she now works as an legal consultant for international NGOs. She is the creative director of the Dirt Foundation and her book Juris Materiarum: Empires of Earth, Soil, and Dirt was published this year.
Main image original artwork by Chris Johnston