This article unpacks the significance of tendering a painted canvas as proof in a native title cl... more This article unpacks the significance of tendering a painted canvas as proof in a native title claim in Australia. The painting is a collaboration of around 50 artists, all members of the Walmajarri, Wangkajunga, Mangala and Juwaliny peoples. The painting works in three ways: as proof of laws about country required under the criteria for native title (law), as establishing the credibility of the claimants (truth) and as a map. I disassemble the painting’s function along these three axes, and argue that in each case it targets a particular orthodoxy in the common law and pushies towards a realisation of the transformative and plural character of evidentiary practices in native title.
Part 2 takes up the claim that the Ngurrara Canvas is evidence of Indigenous law. Although subordinated to the category of ‘fact’, the painting must be taken on its own terms in order for it to be meaningful as proof, including a very different person-place relation as the basis for entitlement and the point that, for the claimants, the painting embodies the law. In Part 3, I argue that the painting makes a claim to credibility that confronts conventional legal understandings of truth because it operates aesthetically, rhetorically and therefore a-rationally. Lastly, to read the painting as a map entails a challenge to the European valuation of land, the way it is thought and depicted. Where maps have historically colluded with property law in order to communicate a particular mode of entitlement, the canvas insists on disrupting the universality of this vision. In all three instances, there is a strong normative aspect to the canvas which is missed in a conventional reading of it as something purely factual, purely aesthetic or purely cartographic. I will show that it is this much larger challenge which must be met if Australia is, as was claimed for the recognition of native title in Mabo (1992), to reject terra nullius.
What do landscapes reveal about law? In Lawscape: Property, Environment, Law, Nicole Graham argue... more What do landscapes reveal about law? In Lawscape: Property, Environment, Law, Nicole Graham argues that landscapes are shaped by legal regulation, and reflect the archetypal characteristics of Western property law, such as the discourse of improvement and the dephysicalised concept of property in which the material limits of places have no bearing on the rights of owners to use them. More basically, it reflects the prior distinction between culture and nature that makes of environment and property two separate domains. In reviewing the book, I focus on the concept of nomadism as a useful foil to Graham’s argument about place and placelessness in property law. My conclusion is that the argument against placelessness finds a larger home than in property law per se.
There are an infinite number of ways that the law marginalises groups of people. What is meant he... more There are an infinite number of ways that the law marginalises groups of people. What is meant here by the word ‘marginalise’ is the sense that the law treats certain groups of people in particular ways: as inferior, less important, different to others, or as members of a periphery, and with the intention of forcing them into or maintaining their positions of powerlessness. In other words, if we consider the etymology of the word, these are moments that people are forced to the margo, or ‘edge’ of the law. Normally, the existence of legal obligations speaks to the way in which those within a society are bound to one another and to the law as an enforceable system of rules. This includes the myriad of national or international societies and their related laws. However, ironically, people remain bound to the law even if those legal systems exclude them; or put another way, they are included by their exclusion.
This article engages in a comparative study of the “Apologies” to Indigenous peoples in Canada an... more This article engages in a comparative study of the “Apologies” to Indigenous peoples in Canada and Australia that are part of efforts to achieve justice for Indigenous peoples through reconciliation. I argue that, despite differences in context and government strategies surrounding the apologies, there is a “parallel of imaginative dispositions” in them that present a common set of “symptoms” characteristic of sovereignty in the modern state. Plying a version of sovereignty as unlimited, unchallengeable and monologic, the apologies re-enact an original injustice that ignored limits, challenges and multiplicities posed by the presence of indigenous peoples. In this way they undermine their reconciliatory intentions. Or do they? This grounding argument can be complicated in two ways: first, by considering the broader political and legal context of reconciliation in both nations, such that reconciliation can be seen as consistent with, and even necessary to, the assertion of state sovereignty, and second, by attending to the claim that the power of sovereignty is maintained by symbolic as well as material means, such that these symptoms are not conclusive.
In this tribute to the work of Roderick Macdonald on law and governance presented in the context ... more In this tribute to the work of Roderick Macdonald on law and governance presented in the context of a symposium on his life and work, I present 5 texts that are emblematic of his scholarship in this field. In them, Rod’s focus on historical and cultural context is important because the various tools in use by government can only properly be understood in relation to the goals of their policies over time: the means and ends are related. His tendency to view the big picture through the details of the everyday, explains his use of the term “governance” itself which focuses on the practices of governing, and shows up the way in which habitual governance tools like top down rules, punitive sanctions and judicial oversight already commits governments to particular understandings of their human clientele as passive recipients of law and of their mandates as ones of control. The means of governance, argues Macdonald instead, should be those that foster and sustain citizen agency and empowerment.
This article unpacks the significance of tendering a painted canvas as proof in a native title cl... more This article unpacks the significance of tendering a painted canvas as proof in a native title claim in Australia. The painting is a collaboration of around 50 artists, all members of the Walmajarri, Wangkajunga, Mangala and Juwaliny peoples. The painting works in three ways: as proof of laws about country required under the criteria for native title (law), as establishing the credibility of the claimants (truth) and as a map. I disassemble the painting’s function along these three axes, and argue that in each case it targets a particular orthodoxy in the common law and pushies towards a realisation of the transformative and plural character of evidentiary practices in native title.
Part 2 takes up the claim that the Ngurrara Canvas is evidence of Indigenous law. Although subordinated to the category of ‘fact’, the painting must be taken on its own terms in order for it to be meaningful as proof, including a very different person-place relation as the basis for entitlement and the point that, for the claimants, the painting embodies the law. In Part 3, I argue that the painting makes a claim to credibility that confronts conventional legal understandings of truth because it operates aesthetically, rhetorically and therefore a-rationally. Lastly, to read the painting as a map entails a challenge to the European valuation of land, the way it is thought and depicted. Where maps have historically colluded with property law in order to communicate a particular mode of entitlement, the canvas insists on disrupting the universality of this vision. In all three instances, there is a strong normative aspect to the canvas which is missed in a conventional reading of it as something purely factual, purely aesthetic or purely cartographic. I will show that it is this much larger challenge which must be met if Australia is, as was claimed for the recognition of native title in Mabo (1992), to reject terra nullius.
What do landscapes reveal about law? In Lawscape: Property, Environment, Law, Nicole Graham argue... more What do landscapes reveal about law? In Lawscape: Property, Environment, Law, Nicole Graham argues that landscapes are shaped by legal regulation, and reflect the archetypal characteristics of Western property law, such as the discourse of improvement and the dephysicalised concept of property in which the material limits of places have no bearing on the rights of owners to use them. More basically, it reflects the prior distinction between culture and nature that makes of environment and property two separate domains. In reviewing the book, I focus on the concept of nomadism as a useful foil to Graham’s argument about place and placelessness in property law. My conclusion is that the argument against placelessness finds a larger home than in property law per se.
There are an infinite number of ways that the law marginalises groups of people. What is meant he... more There are an infinite number of ways that the law marginalises groups of people. What is meant here by the word ‘marginalise’ is the sense that the law treats certain groups of people in particular ways: as inferior, less important, different to others, or as members of a periphery, and with the intention of forcing them into or maintaining their positions of powerlessness. In other words, if we consider the etymology of the word, these are moments that people are forced to the margo, or ‘edge’ of the law. Normally, the existence of legal obligations speaks to the way in which those within a society are bound to one another and to the law as an enforceable system of rules. This includes the myriad of national or international societies and their related laws. However, ironically, people remain bound to the law even if those legal systems exclude them; or put another way, they are included by their exclusion.
This article engages in a comparative study of the “Apologies” to Indigenous peoples in Canada an... more This article engages in a comparative study of the “Apologies” to Indigenous peoples in Canada and Australia that are part of efforts to achieve justice for Indigenous peoples through reconciliation. I argue that, despite differences in context and government strategies surrounding the apologies, there is a “parallel of imaginative dispositions” in them that present a common set of “symptoms” characteristic of sovereignty in the modern state. Plying a version of sovereignty as unlimited, unchallengeable and monologic, the apologies re-enact an original injustice that ignored limits, challenges and multiplicities posed by the presence of indigenous peoples. In this way they undermine their reconciliatory intentions. Or do they? This grounding argument can be complicated in two ways: first, by considering the broader political and legal context of reconciliation in both nations, such that reconciliation can be seen as consistent with, and even necessary to, the assertion of state sovereignty, and second, by attending to the claim that the power of sovereignty is maintained by symbolic as well as material means, such that these symptoms are not conclusive.
In this tribute to the work of Roderick Macdonald on law and governance presented in the context ... more In this tribute to the work of Roderick Macdonald on law and governance presented in the context of a symposium on his life and work, I present 5 texts that are emblematic of his scholarship in this field. In them, Rod’s focus on historical and cultural context is important because the various tools in use by government can only properly be understood in relation to the goals of their policies over time: the means and ends are related. His tendency to view the big picture through the details of the everyday, explains his use of the term “governance” itself which focuses on the practices of governing, and shows up the way in which habitual governance tools like top down rules, punitive sanctions and judicial oversight already commits governments to particular understandings of their human clientele as passive recipients of law and of their mandates as ones of control. The means of governance, argues Macdonald instead, should be those that foster and sustain citizen agency and empowerment.
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Part 2 takes up the claim that the Ngurrara Canvas is evidence of Indigenous law. Although subordinated to the category of ‘fact’, the painting must be taken on its own terms in order for it to be meaningful as proof, including a very different person-place relation as the basis for entitlement and the point that, for the claimants, the painting embodies the law. In Part 3, I argue that the painting makes a claim to credibility that confronts conventional legal understandings of truth because it operates aesthetically, rhetorically and therefore a-rationally. Lastly, to read the painting as a map entails a challenge to the European valuation of land, the way it is thought and depicted. Where maps have historically colluded with property law in order to communicate a particular mode of entitlement, the canvas insists on disrupting the universality of this vision. In all three instances, there is a strong normative aspect to the canvas which is missed in a conventional reading of it as something purely factual, purely aesthetic or purely cartographic. I will show that it is this much larger challenge which must be met if Australia is, as was claimed for the recognition of native title in Mabo (1992), to reject terra nullius.
Part 2 takes up the claim that the Ngurrara Canvas is evidence of Indigenous law. Although subordinated to the category of ‘fact’, the painting must be taken on its own terms in order for it to be meaningful as proof, including a very different person-place relation as the basis for entitlement and the point that, for the claimants, the painting embodies the law. In Part 3, I argue that the painting makes a claim to credibility that confronts conventional legal understandings of truth because it operates aesthetically, rhetorically and therefore a-rationally. Lastly, to read the painting as a map entails a challenge to the European valuation of land, the way it is thought and depicted. Where maps have historically colluded with property law in order to communicate a particular mode of entitlement, the canvas insists on disrupting the universality of this vision. In all three instances, there is a strong normative aspect to the canvas which is missed in a conventional reading of it as something purely factual, purely aesthetic or purely cartographic. I will show that it is this much larger challenge which must be met if Australia is, as was claimed for the recognition of native title in Mabo (1992), to reject terra nullius.