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Treaty holds the key to robust environmental law



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?'

Aboriginal man holds hands with Earth. John Howard and Tony Abbott turn away. Chris Johnston cartoonAbbott 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.


Bronwyn LayDr 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

Topic tags: Bronwyn Lay, Treaty



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Existing comments

Thank you for yet another thoughtful intervention in a debate that, to our great shame, is still unresolved. I wonder whether Howard and Abbot have ever read "Forgotten War" by Henry Reynolds, which establishes clearly that the settlement of the continent by our white predecessors was an invasion that led to a drawn-out war and the loss of at least thirty thousand indigenous lives and the destruction of a fragile ecosystem nurtured over thousands of years?

Peter Downie | 12 September 2016  

You have put your views so well. Lets hope those in power will act upon it.

LynneZ | 12 September 2016  

Aust. govt. should take a leaf out of NZ's actions re its people. Do not like what has happened to the Aborigines. Guess Abbott & Howard would like to put Aborigines in camps as they did to immigrants and NZer's. It only cfreates more problem. Much sympathy to your people who try to give compassion as well as normal human rights to all Aussies.

Noeline Champio | 12 September 2016  

We must all build real friendships with the aboriginal people of this land ... friendships that grow in understanding and appreciation of a people who have held this country in respect for thousands of generations ... deep friendships that can legitimately advocate with aboriginal people who are confronted with a society that walks over the quiet voices in favour of the noise of 'growth' out of all proportion of what this Earth can sustain.

David Woods | 12 September 2016  

While I agree with the overall pitch of this article - that a treaty with Indigenous Australians could facilitate further development of jurisprudence and law in a range of areas, I am reluctant to emphasise connecting treaty with environmental protection. The 1970s saw a strong bond between support for Indigenous Australians and growth in public action for the environment. Development of environmental legislation federally and in all States and Territories, occurred in the same decade as the Racial Discrimination Act, and the Northern Territory Land Rights Act. However in the 1980s and 1990s, as more and more Aboriginal communities and Land Councils started negotiating employment opportunities and payment of royalties with mining companies, that bond between environmental activists and activists for Indigenous Australia was broken or severely stressed. Yes we need more environmental protection, Yes we must have a treaty with Indigenous Australians, federally or State by State. But neither should be seen as dependent on, or justified by, the other.

Ian Fraser | 12 September 2016  

Morally you are correct of course, however, as you are no doubt aware one must be careful with comparisons. Without direct influence in matters concerning Aboriginal peoples cultural identity and relatedness to Country by the First Nations peoples anything else is distributed equality by the State formulated on a presupposition of inequality. Change can occur but requires not a Treaty or Constitutional change but through lateral thinking using our present Constitutional, Political and Legal systems. Challenging decision making on behalf of Aboriginal peoples to explore what 'he/she does not speak for me' means and challenging acceptance by non-Aboriginals that their conversation underlines a presupposition of intelligence and equality. Notwithstanding any negotiation must be done through aboriginal Nation's Elders and not self proclaimed Representatives. Then of course there are those who see human and environments Rights as being subservient to the Neo-liberal philosophy of individualism and capitalism.

Jeffrey Morrall | 12 September 2016  

I'm with Ian. These are both important issues but I don't think they need to be joined. If corporations can be granted the legal status of a 'person', why not the whole or parts of our environment. But let's not give the conservative right another opportunity to obfuscate the debate about a treaty.

Ginger Meggs | 12 September 2016  

I found this article made me sit up and think. The difference, as you point out, to the colonial situations in New Zealand and Australia is that, in the former Britain did make the Treaty of Waitangi with the Maori chiefs. This was done under duress, after the Land Wars, where the Maori basically fought the British Empire - including a large Australian contingent - to a standstill. The Maori have had to revisit Waitangi several times in the courts to obtain their legal due. The legal wrangling is not quite over. Britain has broken or dishonoured the conditions of most of the treaties she has made with the Sinhalese chiefs, during various Irish rebellions and with Waitangi et sim. I am not sure a treaty - on its own - is 'the answer'. I also think it is possible to be a man or woman of good will towards Australia's ATSI peoples without necessarily having to be vehemently pro or anti treaty. To tar someone with the 'racist' brush because he/she is not pro-treaty is malicious.

Edward Fido | 12 September 2016  

So well said thank you. Treaty /ies re long overdue in Australia, very sadly these previous PMs are totally are out of touch. Last Friday a significant part of history was had in Australia. Tradional law man and Elder Yingyia Mark Guyula, an Independent- endorsed by the Yolgnu Nations Assembly- is the incumbent Member for of the seat of Nhulunbuy in the NT Government having deposed the likely deputy of the Labor party. Yingyia’s platform was Treaty Now, recognition of Sovereignty and Madayin Law. This is another step in the long road to true recognition of the sovereign owners and custodians of the land. The Yolgnu have long called for Treaty -e.g. 1988 Barunga Statement, the 1998 Miwatj Petition, and the 2008 Yirrkala Bark Petition. Yingiya has long spoken out for his people, against the NT-Intervention and Stronger Futures legislation –bipartisan polices failing his people. View this 8 minutes video Treaties which speaks to why treaty/ies long overdue in the context of current injustices of the Stronger Futures legislation; the ten year extension of the failed NT Intervention. https://www.youtube.com/watch?v=nU_H0oIQy60 Worth Viewing also "Can a National Park be a person, NZ saya Yes" https://www.facebook.com/GuardianUs/videos/557099607811140/

Georgina | 12 September 2016  

Thank you Bronwyn. Another clearly presented and well argued case for progress on more than one front. If only policy-makers would listen to this advice and put ideology and short-term self enrichment aside.

tony | 12 September 2016  

When will we ever learn? Less than 300 yrs of Western Technical/Industrial/Commercial dominance and our (only) Earth is facing catastrophe. No wonder so many SF dreamers vainly hope to move to another planet, light years away. 40,000 years (and globally probably ten times longer) of First People's appropriate and ecologically-balanced technology and sophisticated culture has many lessons to teach. Out of 1,000s of home-truths to be learned, the first one is: "Always put your environment first; for future generations will be in need of it.". An honest and acceptable Treaty would help us Second People drop the blinding hubris that's killing us and start facing reality with eyes wide open. Theologically, I'm not very hopeful: the First People were found to be "very good" (Genesis chapter 1). Second People were never so commended (Genesis chapter 2 et seq.). Dr Bronwyn Lay shows the way for us to begin to save the day but I fear we've gone too far astray.

Dr Marty Rice | 12 September 2016  

Not really surprising that Howard and Abbott are holding hands on the refusal to contemplate a treaty with the Aboriginal people. This well-matched pair of troglodytes is still aeons behind the development of most indigenous peoples of the world.

john frawley | 13 September 2016  

Please do not wait for a balanced comment on this issue from Howard ,for has he not long disowned any responsibility for results of the invasion he did not personally conduct .However ,he seriously enjoys the material fruits of that invasion . Little different to displaying any conscience driven understanding of our young men who died & the masses of living dead suffering war neurosis from having been sent to assist his warmongering friend George Bush's invasion of Iraq . Either brand of our successive Federal governments ,one of which allowed an Asian company ( Wilmar International ) to purchase the majority portion of sugar production in Australia ,while that company is in court in several Asian & African countries for serious human rights violations & environmental vandalism . They are now striving to gain total monopolistic control of marketing much of our sugar ,even the Economic Interest sugar legally belonging to many Queensland canegrowers .While the current LNP government has abandoned us growers to the Wilmar aspirations & several high ranking Ministers have basically told us " to get used to it ". They are as morally bankrupt as the Company they support .Regards John

john kersh | 13 September 2016  

Thank you! I’d like to see the Treaty concept broadened to encompass the development of a Bill of Rights, a new Constitution & ultimately from all of these components, a Republic.

Stephen Lomas | 13 September 2016  

In regard to Maori guardianship (never ownership) of the Wanganui river we knew the environmental officer who pursued this process with zeal and conviction based on the overriding legitimacy afforded by The Waitangi Treaty. It was a battle that overcame protective hydroelectric (economic) enacted legislations. He was the son of our white Dutch neighbour while his mom was of Maori descent. No problems in the end to devolve white supremacist colonial anxieties.

Rein Zeilstra | 16 September 2016  

Treaty Now! And no messing about. Become a Republic and have all Crown land become Indigenous in name and title. Pay a peppercorn rate for all other land including a backdate for 200+ years. Enough to stop welfare payments. The Aboriginal people could well be the saviors of Australia.

Lawrence S. Roberts | 16 September 2016  

Get to KNOW what this means... (Dr Bronwyn Lay, knows.) Regardless of her "argument/s" she "nails it" in one sentence, I feel. < "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." > As "custodians of the land", Original "lore" ... can at all times protect the land, and always under ... the law of the land. (Do No Harm.) Law that we (living men and women) are ALL under, and protected by. Compromises? There are no compromises, at law.

ross-james | 29 September 2016  

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