'Yoongoorrookoo: The emergence of ancestral personhood' by Alessandro Pelizzon, Anne Poelina, Afshin Akhtar-Khavari, Cristy Clark, Sarah Laborde, Elizabeth Macpherson, Katie O’Bryan, Erin O’Donnell and John Page in (2021) Griffith Law Review argues
Since the momentous release of the Montecristi Constitution of Ecuador in 2008, which recognised Nature, or Pacha Mama, as a subject of rights, the rights of Nature movement across the world has gained exponential momentum, with numerous jurisdictions worldwide now recognising some form of legal subjectivity vested upon Nature. In particular, since 2017, river personhood has dominated news headlines around the world as one of the most recognisable forms of Nature’s novel subjectivity. The emergence of legal personhood for nature, however, has been far from uncontroversial, and numerous critiques have been advanced against the use of such a legal category – traditionally applied to humans and their abstract creations (such as States and corporations) – to the natural world, resulting in numerous calls for an alternative category of legal personhood (one that some rights of Nature advocates have termed an ‘environmental person’). Against the backdrop of this emerging debate, this paper acknowledges the work undertaken by the Martuwarra Fitzroy River Council (Martuwarra Council), which was established in 2018 in the Kimberley region of Western Australia by six independent Indigenous nations to preserve, promote and protect their ancestral River from ongoing destructive ‘development’. The Council believes it is time to recognise the pre-existing and continuing legal authority of Indigenous law, or ‘First Law’, in relation to the River, in order to preserve its integrity through a process of legal decolonisation. First Law differs markedly from its colonial counterpart, as its principles are not articulated in terms of rules, policies and procedures, but rather through stories. This paper, therefore, begins with a dialogical translation of one First Law story relating to Yoongoorrookoo, he ancestral serpent being, to create a semantic bridge between two apparently distant legal worldviews. A dialogical comparative analysis is then followed to posit and explore the concept of an ‘ancestral person’ as a novel comparative tool that may be able not only to capture the idea of Nature as a legal subject, but also complex Indigenous worldviews that see Nature – in this case instantiated in the Martuwarra – as an ancestral being enmeshed in a relationship of interdependence and guardianship between the human and the nonhuman world. To instantiate and embody such relationships, the paper directly, and somewhat provocatively, acknowledges the River itself, the Martuwarra RiverOfLife, as the primary participant in such dialogue, an embodied non-human co-author who began a conversation then left to human writers to continue.
As I have suggested in a forthcoming chapter and a monograph, a somewhat bleaker view would dissent from the notion of 'exponential momentum', especially momentum that has much impact in courts and in practice.
The authors refer to
the clear emergence of a novel category of personhood that aims to transcend the existing Western dichotomic of natural and artificial personhood, but also to imagine a category of personhood capable of existing at the pluralist intersection of colonial and pre-colonial legal orders, that of an ancestral person. ... xxx The idea of an ancestral person is thus proposed as a novel and intersectional category of legal personhood located at the encounter between colonial legal systems and First Law. It is important to note that this conceptual category is neither a creature of the colonial Western legal tradition nor of First Law, but rather is a conceptual tool to be negotiated as a bridge between the two. In order to establish the parameters of such negotiation, we want to begin by offering a few preliminary reflections.
Indigenous rights to natural resources are often described as being ‘ancestral’ in nature, based on a deep spiritual connection between people and resources handed down across generations, placing an obligation on people to govern and care for the resources for present and future generations. The term ‘ancestral’ is typically defined as meaning ‘relating to, or inherited from an ancestor’, and has underpinned conceptions of Indigenous rights in International treaties (such as the International Labour Organisation’s Convention 169 on the Rights of Indigenous and Tribal Peoples), as well as the Indigenous land rights jurisprudence arising from it. However, recognising pre-existing, ‘ancestral’ rights raises inevitable tensions around continuity, because of the period of time that has elapsed since colonisation. At times, this framing of Indigenous interests as ‘ancestral’ has been used by States to exclude Indigenous territorial claims that cannot be positively proven through continuous lines of succession since pre-colonial times, which has led to the ‘freezing’ of Indigenous territorial interests. An example of this is found in Chile, where Indigenous rights to water are framed as ‘ancestral rights’, and must be proved to have existed since ‘time immemorial’. The same problem occurs in the case of Australian native title rights to water, which must be proven pursuant to the maintenance and observance of traditional laws and customs that have been substantially maintained since the colonial claim to sovereignty. This restriction of ‘ancestral’ rights has led to the ongoing dispossession of Indigenous lands.
In the Australian context, concerns have also been raised that a turn to rights of Nature discourse will result in the separation of land and waters from Indigenous people rather than respecting their sovereignty and empowering them to carry out their obligations to Country. Other scholars have more broadly argued that the deployment of legal personhood for Nature has led to the law conceiving of Nature in distinctly human terms – and, relatedly, to conceiving rights in distinctively liberal terms. Tănăsescu emphasises that ‘the way in which we think of the entities that populate the law matters a great deal … [and] potentially stifles the politically radical act of extending the circle of entities recognized by the law’. He then questions whether Indigenous ontologies, including a relational approach to Nature and selective ‘anthropomorphism can be aptly accommodated within the liberal concept of legal person’.
Despite these critiques, many scholars ultimately adopt a nuanced approach to the strategic use of rights discourse. Here the question of whether to risk engaging with the system ‘partly comes down to an assessment of whether they have the power to effect genuine change through this kind of engagement’, which in turn depends on whether one adopts a centralist or pluralist approach to law. A pluralist approach, whereby legal norms are constructed by a multiplicity of actors, opens up the possibility of radical change, even when faced with the risk of deradicalization. Balakrishnan Rajagopal, for example, recognises the plurality of influences in the ongoing creation of legal norms in his argument for the production of an ‘international law from below’. Ultimately, Tănăsescu adopts a similarly nuanced approach by highlighting the New Zealand example of the Te Urewera Act of 2014, which establishes Te Urewera as a legal entity rather than person. He argues that this is one path of avoiding the pitfalls of allowing Indigenous law and ontology to become too entangled with liberal notions of personhood and rights. In this example, the Act is a vehicle through which the local Māori Iwi have been able to create space not only for a more relational ontological approach to Nature, but also to claim power through the governance structures and processes that have emerged from the Act.
In Australia, one might ask whether the Native Title Act, for those Indigenous peoples who can meet the high threshold for proving connection to their ancestral lands noted earlier, can recognise a form of ancestral personhood, given that it provides for the recognition of traditional laws and custom in relation to land and waters. However, it is readily apparent that the Native Title Act (at least in its current form) does not deal well with legal pluralism; it is structurally and philosophically ill-equipped to give legal recognition to the concept of the ancestral person. Not only is the Act ultimately anthropocentric in its orientation, but also it is premised on a separation between land and waters, a premise which is antithetical to Indigenous world views. Rights and interests under traditional laws and customs can only be recognised by the Act insofar as they do not ‘fracture a skeletal element of our legal system’, and thus, accordingly, the Act inevitably reflects a colonial conceptualisation of the environment. Determinations of native title typically limit the recognition of water rights to a ‘non-exclusive right to take, use and enjoy that water’ or to take and use water ‘for personal, domestic and non-commercial communal purposes’ (or variations thereof). Moving away from these formulaic and anthropocentric descriptions of native title rights to water to encompass a more holistic conception of Country appears unlikely. In this sense, existing native title regime may be helpful in giving a voice to native title holders or claimants, but despite recent judicial attempts to ameliorate some of its limitations, is insufficient to capture the complexity of the normative and legal worldviews underpinning such regimes.
The proposed concept of an ancestral person, therefore, is offered as a dialogical interface between distinct legal orders. To aptly reconcile the distinctive worldviews represented by this pluralist intersection, any conceptualisation of ancestral personhood cannot be derivative, but rather must necessarily be dialogical and co-creative. The aspirational desire of such a novel category is to reach a point of complementary harmony and collective wisdom, while maintaining ongoing awareness of the fact that the idea of the ancestral person as a comparative tool to establish a meaningful dialogue between ontologically distinct legal orders always operates within an asymmetry of power. The concept of an ancestral person as a novel legal category, undoubtedly presents colonial audiences – particularly colonial legal audiences – with a challenge. As an intersectional concept, it is more than a simple tertium genus of personhood. Rather it is a concept that can only emerge from the intersection among, and dialogue with, distinct legal traditions. Its complexities, however, are far more challenging for colonial legal systems than they are for Indigenous people. As a result, the burden is placed upon colonial legal scholars to develop the conceptual tools to fully approach the very idea of an ‘ancestral’ person as a legal concept.
The authors conclude
The concept of the ancestral person presented in the previous section is an invitation to challenge the hegemonic and deeply held legal orthodoxy, while at the same time articulating First Law in terms that are recognisable within the colonial context. Once embraced in these comparative terms, law is no longer something that only humans engage with. Rather, law emerges from the endless interplay between humans and non-human ‘actants’, whereby rivers cease to be mere abstract legal persons, and instead become active participants in the very process of legal creation. The description of non-human beings as alive, sacred, emotional and vibrant, which has suffused this paper thus far, differs from current posthumanist, vitalist, materialist, or object-oriented scholarship that depart from traditional cartesian dualism, at least by gesturing toward an even less anthropocentric and more relational orientation. Rather, ancestral stories and First Law inform and shape the theoretical positioning of this paper, in explicitly maintaining the deep relational structures that these theories call upon.
A practical instance of the application of the ancestral person to capture the plurality of worldviews that surround Nature is, we argue, the present story of the Martuwarra (or Fitzroy River) in the north-western Kimberly region of Australia. Against the normative message of the Yoongoorrookoo story, Anne Poelina and her colleagues describe more than 150 years of invasive colonial ‘development’ in the region. Indeed, the interest from the agro-pastoral sector in exploiting the waters of the Martuwarra-Fitzroy River has grown over the last decade, in particular since the publication of the Australian Government’s White Paper on developing Northern Australia.126 At present (in 2021), the government of Western Australia is preparing a water allocation plan for the Martuwarra-Fitzroy catchment as a basis for responding to water licensing requests. The express governmental aim of water allocation process is to maximise the water available for abstraction while maintaining the long-term integrity of the water resource. The ongoing water allocation planning process in the Martuwarra-Fitzroy catchment is, however, highly contentious, especially as Traditional Owners are only considered stakeholders while decision-making power about the future of the Martuwarra-Fitzroy River rests only with Government. The Yoongoorookoo story, the Martuwarra, and the depth of Aboriginal legal and normative traditions are all silenced within this modern water governance framework, despite a commitment from the State government to protect Indigenous cultural values.
The Martuwarra and her peoples are thus left wondering when will the ‘colonial war’ end? In the words of late senior Elder, Butcher Wise, ‘you came, you took the land, you made us slaves and now you are back for the water; what is going to be left for Blackfellas [Aboriginal people]?’ The Martuwarra Fitzroy River Council (Martuwarra Council) was established in 2018 by six independent Indigenous nations to preserve, promote and protect their ancestral River from such ongoing destructive ‘development’. The Council believes it is now imperative to recognise the pre-existing and continuing legal authority of Indigenous law, or ‘First Law’, in relation to the River, in order to preserve its integrity through a process of legal decolonisation. First Law differs markedly from its colonial counterpart, as its principles are not articulated in terms of rules, policies and procedures, but rather through stories. The story with which this paper begins thus represents an opening into the normative and legal world of the Nyikina people, gesturing toward a host of legal and normative principles that can only be explored by applying an open and dialogical comparative legal methodology.
Fundamental to First Law in the Martuwarra-Fitzroy Catchment is the role of the ancestors who create and populate the Country such as the Serpents (called Yoongoorrookoo in Nyikina language). These Serpents are guardians of the Country, strongly associated with water places. The First Law Story of Yoongoorrookoo illustrates how the physical manifestations of the sacred ancestral being, Yoongoorrookoo, is entwined with ethics, values, custom, law, language, and inter-generational obligation, as water moves above ground, down rivers and permeates though groundwater systems. ...
Today, the First Law of the Martuwarra, as well as culture and languages, remain fragile. New emerging storytellers are using modern technology to revive Bookarrarra Stories using multi-media, to reproduce stories in three-dimensional experience of sight, sound and ‘feeling’, or liyan. The concept of liyan incorporates at once a person’s spirit, moral compass and a conscious feeling that positions someone within the cultural landscape and grounds their intuition for ‘reading circumstances’, ‘reading people’ and ‘reading the Country’. First Law stories, such as Yoongoorrookoo Creator of the Law, create the opportunity to adapt them in order to keep them alive an in the hearts, minds and liyan of Martuwarra people as well as sharing with all people a complex set of values, ethics and the Law. These First Law stories, reimagined in a digital form, create a pathway for ‘freedom, ethics and civic courage’, an invitation to collective wisdom, cooperation, unity, information sharing and informed consent, the ‘cultural synthesis’ framed by Paulo Freire.
The gift of the Yoongoorrookoo story, therefore, offers as an invitation to a legal dialogue among distinct legal orders, in the spirit of an emerging ‘Coalition of Hope’, whereby the renewed focus on First Law can provide a complimentary worldview encompassing an ethical framework that is able to ground justice and equity in a Law of relationships between human and non-human beings. This invitation is paramount to the possibility of imagining, discussing and conceptualising an ‘ancestral person’, whose ontological orientation is best exemplified by the Yoongoorrookoo story in relation to the Martuwarra. Far from leading to any pre-determined outcome, the negotiation of a novel category of personhood offers a creative space to counter the colonial risks of an unquestioned extension of legal personhood to Nature that Virginia Marshall aptly cautions against.
The co-creation of an ancestral person as a novel legal category able to capture the nuances of First Law while speaking to the need of identifying a specific legal ‘subject’ that can be readily understood within the colonial framework inherited by the Western legal tradition is, in the present instance, instantiated in the Martuwarra. Importantly, the ideas discussed in this article were formally presented to the Martuwarra Council at the ‘Council of Wisdom’ workshop the Council held (partly remotely, due to the extant Covid19 restrictions) in June 2021. At the workshop, all present members of the Council endorsed the idea of an ancestral person as an instance of legal intersection worth pursuing and co-creating further.
The Martuwarra Council’s understandings is that the Law is in the Land because it is from the stars and the earth that laws are grounded. It is therefore the Martuwarra’s peoples deep and continuing relationship with nature to witness and understand why these laws were created. No one is above the Law, according to First Law in the Martuwarra, everyone is equal under the Law, and stories show Yoongoorrookoo a living entity, a sacred ancestral being which continues to hold the Law from the Beginning of Time, Bookarrarra. The invitation to consider an ancestral person as a novel legal category, thus, may be read as a response to the pluralist opening to First Law as advocated by Yoongoorrookoo, ‘So all the people can see that the Spirit of the Law is just’.
'Removing the Veil from the ‘Rights of Nature’: The Dichotomy between First Nations Customary Rights and Environmental Legal Personhood' by Virginia Marshall in (2019) 45(2) Australian Feminist Law Journal 233-248 comments
The legal concept of the creation of a legal entity is not trailblazing territory of itself, although introducing and advocating for the legal personality of a river may be. However, advocating for the rights of nature on grounds that all humans over-exploit, abuse and contaminate the environment is as misleading as it is untrue. The Indigenous peoples of Australia have a primary, unique and inherent obligation to ‘Care for Country’ according to the Indigenous rule of law; exercising the protection and management of the Aboriginal and Torres Strait Islander environment. The Indigenous rule of law and the obligation to ‘Care for Country’ stretches back many millennia yet Australian domestic laws and policies fail to properly support the exercise of such obligations by Indigenous Australians. In this article I argue, rather than embracing a ‘rights of nature’ property paradigm in Australia, we should instead empower First Nations people to take a pivotal, even primary, role in caring for Country.
