Body parts, emotions and associated lovely things

 

 

I went to a brilliant seminar on the language of emotion in Dalabon by Maïa Ponsonnet yesterday. Dalabon is an endangered Gunwinyguan language spoken by less than twelve speakers in Arnhem Land. This is just a skip, hop, and a jump away from my fieldsite (in Australian terms), so it was amazing to see just how different – not only the language is, but the way people consider, think and talk about emotion.

In the North East where I work the lexicon of emotion pivots on the concept of ŋayaŋu (‘state or sense of feeling’), which is associated with the gumurr (‘chest’). The seat of the emotions, in contrast – ŋoy (which is generally associated with heavier, personal, often negative emotions) – is associated with the lower abdomen. Ŋayaŋu is fundamentally relational – it refers to the state or sense of feeling between people at any given time, whereas ŋoy is an individual, personal thing. Ŋayaŋu can be positively or negatively affected by everyday interactions. ‘States of feeling’ can not only be affected but they can also be exchange and shared; People may have a particular state or sense of feeling, but people can also wikama (‘give’) or märrama (‘take, bring’) a particular state of feeling to another person, a group of people, or even a camp or place. Ŋayaŋu can also be wut-thun (‘hit, affronted, assaulted’), djaw’yun-märrama (‘snatched, stolen’) or ŋama-thirri-yama (‘made well’). Ŋoy is none of these things. Ŋoy is not only individual, but (perhaps thankfully) it is also impervious – at least when compared to ŋayaŋu.

Further West and in Dalabon, as I learned yesterday, the emotion lexicon is very much focused on kangu-no (‘belly [as the body-part or locus for emotion]‘) and the concept of yolh-no (‘feelings, pep, vitality’). Negative and positive emotional states are considered and talked about along a spectrum of fluidity where ‘flowing’ is positive and good, and ‘blocked’ is negative or bad. In contrast to ŋayaŋu (‘state or sense of feeling’), yolh-no (‘feelings, pep, vitality’) is always a part of the person – it is inalienable.

Similar to ŋayaŋu (‘state or sense of feeling’) and the many idioms based on the term gumurr (‘chest’), there are, Maïa explained, many metaphors or idioms based on the kangu-no (‘belly’), so one can say “belly releases” and it may refer to the physiological feeling and the positive emotional state of the person. To have a flowing belly is also indicative of a good, ‘nice’ person – comparable to, I suppose (but not the same as), saying that someone has a ‘kind heart’ in English.

Anyhow, the associated lovely thing that I wanted to write about was the ritual that Maïa mentioned involving young babies. A baby will be taken to a creek or river bed and given a sand massage. The mother then places the baby on his or her stomach in the sand, and drags the child gently so as to leave an imprint of the child’s belly. The water then eventually rises, and the flowing water washes the imprint away. The hope, of course, is that the child will grow up to be a person whose belly is ever flowing.

How just-so lovely is that . . .

 

 

 

 

 

Solidarity with those on strike at Uni of Sydney! Stop police brutality!

 

 

† Around Australia, thousands of students (seemingly concentrated in Melbourne and Sydney) went on strike and rallied and marched today, in protest at the cuts ($2.3 billion) by the Federal government to the tertiary education sector.

Their protests will of course be ignored — but may constitute a step in the right direction. In any event, at the University of Sydney, police attacked a picket, breaking one man’s leg in the process.

Some folks have issued the following statement on Facebook in response. No doubt there will be further accounts and reflections in the days and weeks ahead. (Note that the University inter alia appears to have become a focus for recent ASIO snooping.)

 

“An Open Letter to and from the University of Sydney community,

 

One student had his leg broken. Another was choked and went limp. Several students were trampled. Many others were shoved, grabbed, bruised or struck. These attacks on peaceful protestors were nothing less than outrageous.

 

All of these assaults and indignities could have been avoided if Spence did not allow the riot police on campus. The university has the right to exclude police from campus, and in the past it was very rare for the cops to come on campus for this very reason.

 

We condemn Spence. If the university allows riot police onto campus, it is complicit in their violence. The argument that they bring order to the campus is transparently absurd, all footage and testimony shows that the police have been a force for violence and disruption (there is an old quip: the riot police are aptly named).

 

Copy and paste this as your status in solidarity with those injured.”

 

 

 

 

 

† This is re-blogged from everyone’s favourite Australian #anarchist #trot-spotting #antifascist blog, Slackbastard.

 

Thesis Excerpt: Introduction to Chapter 7

 

 

 

In previous chapters I have explored how concepts of affect play out in everyday social relations; how they shape the way people consider issues of morality, and motivate certain culturally recognised and recognisable forms of interpersonal and social exchange. In this chapter I consider the interplay between forms, material conditions and social relations of exchange as a model or theory of exchange in its own right. I employ Sahlins’ general scheme of reciprocity as a heuristic, overlaying it with Yolŋu terms and concepts, to clarify what I see as the basic Yolŋu theory of exchange. My argument is that ŋayaŋu waŋgany (‘one state or sense of feeling’) is a fundamental value in both material and non-material exchange.

While I make use of Sahlins’ continuum of reciprocities, I need elucidate how his theoretical presuppositions and scheme ultimately differ from those I require to account for the Yolŋu material. Specifically, what I seek to account for is an apparent lack of correlation between the material, and the moral and political dimensions of Sahlins’ scheme when overlaid with the Yolŋu material – whether the material forms of exchange are considered or felt to be positive and ‘good’ or negative and ‘bad,’ and their socio-political entailments – the nature and degree of solidarity that they result in, or effect. Based on empirically observable criteria, certain cultural forms of exchange described in previous chapters can be confidently placed at certain points along Sahlins’ continuum – as material forms. However, when we consider the moral and social dimensions more closely, there appears to be a mismatch between the moral and political entailments and the way these forms are locally conceived. As this material suggests, there are large differences in what-counts-as-what when it comes to the way people consider and experience balance and value in social exchange.

I will argue that we cannot, based on empirical observations alone, assume or deduce the moral entailments of exchange – whether the exchanges observed are considered and felt to be normative and balanced, positive and good, or negative and bad. Nor can we assume or deduce the political entailments – the nature and degree of solidarity that these forms of exchange result in or effect. In order to understand these dimensions of exchange I argue that it is first necessary to understand the terms and concepts that people draw on themselves to interpret, frame and talk about such relations. In the Yolŋu case these are the key body of terms and concepts associated with affect and morality, introduced in Chapter 3. In the Yolŋu case, this associative body of knowledge pivots around the concept of ŋayaŋu (‘state or sense of feeling [among and between people]‘).

 

 

 

 

 

† The featured image is obviously not included in the Chapter!

†† There is one paragraph missing, as I’m not quite 100% confident with it just yet.

 

Yolŋu languages and stories + digital media

 

The Mulka Project continue to produce beautiful and important art works. This is a stop motion animation about two young brothers who get lost in the bush for several days, directed and narrated by Randjupi Munuŋgurr. The Mulka production house and archive is a non-profit, Aboriginal-owned organisation that works to promote Yolŋu culture, language and history. They are affiliated with Buku-Larrŋgay Art Centre, located up at Yirrkala.

 

 

 

 

 

 

 

 

An incidental typewritten notation: Instead of ‘Stateless societies’ …

 

 

 

 

 

 

 

 

open your window, wider, wider (Nabokov)

 

 

I read this poem a number of times over before I realised just how gentle and lovely it is. It reminds me now vividly of opening the shutter windows of a most homely home in Sardinia and, overlooking the early rural morning below, I heard the sound of waves of tinkling bells. (The shepherds were herding their sheep.)

 

 

Soft Sound

 

When in some coastal townlet, on a night

of low clouds and ennui, you open

the window – from afar

whispering sounds spill over.

 

Now listen closely and discern

the sound of seawaves breathing upon land,

protecting in the night

the soul that harkens unto them.

 

Daylong the murmur of the sea is muted,

but the unbidden day now passes

(tinkling as does an empty

tumbler on a glass shelf);

 

and once again amidst the sleepless hush

open your window, wider, wider,

and with the sea you are alone

in the enormous and calm world.

 

Not the sea’s sound . . . In the still night

I hear a different reverberation:

the soft sound of my native land,

her respiration and pulsation.

 

Therein blend all the shades of voices

so dear, so quickly interrupted

and melodies of Pushkin’s verse

and sighs of a remembered pine wood.

 

Repose and happiness are there,

a blessing upon exile;

yet the soft sound cannot be heard by day

drowned by the scurrying and rattling.

 

But in the compensating night,

in sleepless silence, one keeps listening

to one’s own country, to her murmuring,

her deathless deep.

 

 

 

 

- from ‘Collected Poems: Vladmir Nabokov’ (2012), translated by Dmitri Nabokov, edited by Thomas Karshan aa-and published by Penguin Classics, London, pp. 86-87!

 

 

 

 

 

8

To the organisers of the 2013 Sydney Historical Materialism Conference

 

 

 

“Some of us were invited to speak, others have already prepared abstracts and papers for panels, and we had all been planning to attend the conference. We have since learned that Solidarity, an affiliate of the Socialist Workers Party, has given its full and unequivocal support to the latter in its handling of an allegation of rape against a senior member. You have informed us that you agree that the position taken by Solidarity is indefensible, but that you have also decided to invite Solidarity members to present at the conference. As a consequence, and in the absence of any evidence of a change of position by Solidarity, we will not be taking part.”

 

 

Bree Blakeman

Ann Deslandes

Mark Gawne

Angela Mitropoulos

Steve Wright

 

 

If you were going to attend the conference and would like to add your signature, or register your support of those who have decided not to attend, please do so in the comments box of the post via this hyper-link.

 

 

 

 

Mutiny: Imprisonment, Deaths in Custody and the NT Intervention

 

 

This month is the 7th anniversary of Mutiny Zine! Mutiny are an anarchist collective based in Sydney. The zine that they produce explores  ideas about anarchist thought and practice, as well as different avenues of disobedience and resistance. Mutiny are also closely associated with Jura Books, which is well worth a visit if you ever happen to find yourself in Sydney-town.

The following piece – which is based on a previous post hereon -  appears in the latest Issue of Mutiny Zine, # 69. Thank you to the Mutiny crew for the opportunity to share info and stories about Aboriginal Deaths in Custody and institutionalised racism, and congratulations on your 7th anniversary -  keeping a radical project alive for this length of time is no small feat.

 

Imprisonment, Deaths in Custody and the NT Intervention

 

THE CENTRAL FINDING OF THE ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY WAS THAT ABORIGINAL PEOPLE DIE IN CUSTODY AT A RATE RELATIVE TO THEIR CUSTODIAL POPULATION. HOWEVER, ‘THE ABORIGINAL POPULATION IS GROSSLY OVER-REPRESENTED IN CUSTODY. TOO MANY ABORIGINAL PEOPLE ARE IN CUSTODY TOO OFTEN.

 

THE ROYAL COMMISSION FOUND THAT THERE WERE TWO WAYS OF TACKLING THE PROBLEM OF THE DISPROPORTIONATE NUMBER OF ABORIGINAL PEOPLE IN CUSTODY. THE FIRST WAS TO REFORM THE CRIMINAL JUSTICE SYSTEM; THE SECOND APPROACH WAS TO ADDRESS THE PROBLEM OF THE MORE FUNDAMENTAL SOCIAL AND ECONOMIC FACTORS WHICH BRING INDIGENOUS PEOPLE INTO CONTACT WITH THE CRIMINAL JUSTICE SYSTEM – THE UNDERLYING ISSUES RELATING TO OVER-REPRESENTATION. THE COMMISSION ARGUED THAT THE PRINCIPLE OF INDIGENOUS SELF-DETERMINATION MUST UNDERLIE BOTH AREAS OF REFORM. IN PARTICULAR THE RESOLUTION OF ABORIGINAL DISADVANTAGE COULD ONLY BE ACHIEVED THROUGH EMPOWERMENT AND SELF-DETERMINATION.

 

* * *

 

On the evening of January 4th, Kwementyaye joined a large group of friends in the vicinity of Flynn Oval, which is approximately 5kms from the centre of town in Alice Springs.

Constable Gareth Evans began walking towards the group, wanting “to see if they had any information about an alleged fight at the shops.” [i] When he was half way across the oval, however, one of the young women in the group shouted out to the others and they all began to disperse. Constable Evans called for back-up on his radio and began to pursue the group on foot. He jumped a fence and began to jog after a smaller breakaway group of five or six. At the back of that group was Kwementyaye, “and when he got close to a large iron gate beside the school, he slipped on the bitumen or dirt and fell.” When Kwementyaye got up, he had a cut above his left eye, described as a “laceration above his eyes that had burst. There was fresh blood around the cut but it wasn’t gushing or dripping down his face.”

After this initial “fall” Kwementyaye got to his feet and allegedly started swearing. Constable Evans then allegedly gave him a direction to “take a step back” which Kwementyaye allegedly ignored. Constable Evans then “pushed him in the chest with an open left hand, causing him to stumble and fall into the gate, before falling forward.” Kwementyaye was then secured on the ground using a three point hold position, which involves placing one knee on the side of his shoulder and securing his right hand behind his back. Keep in mind that Kwementyaye was not even suspected of having committed a crime. He was taken into Protective Custody because he was deemed too intoxicated to look after himself.

Upon arrival Kwementyaye was placed in an observation cell with two other men. Approximately thirty minutes later he was ordered to come out from the cell to join four or five other detainees who were being processed in reception. On the way into the corridor towards reception, Kwementyaye swayed slightly, turned back and grabbed the door handle, appearing then to lean in to get his shirt that was left on a bench. Constable Evans noticed that Kwementyaye wasn’t following behind the others and “he took him by his wrist to escort him to reception. While Kwementyaye was being escorted his legs went out from under him and he fell forward onto the floor.”

Kwementyaye was then dragged by Constable Evans into the reception area where he was left sprawled out on the floor. A number of other detainees were being processed around him. Kwementyaye lay on the floor for several minutes before Constable Evans “took a pen and applied pressure to his fingernail to see if he would respond to a pain stimulus, a technique he learnt while working as a security officer at a Hospital.” CCTV footage shows that Constable Evans left Kwementyaye lying face down on the ground as he walked away.

 

* * *

 

IN UNDERSTANDING THE USE OF IMPRISONMENT, CUNNEEN WRITES, ONE OF THE MOST IMPORTANT POINTS TO GRASP IS THAT A RISING IMPRISONMENT RATE IS NOT DIRECTLY OR SIMPLY RELATED TO AN INCREASE IN CRIME. THE USE OF PRISON IS A FUNCTION OF GOVERNMENT: IT REFLECTS GOVERNMENT POLICY AND LEGISLATION, AS WELL AS JUDICIAL DECISION-MAKING. GOVERNMENTS MAKE CHOICES THAT EITHER DIRECTLY IMPACT ON THE USE OF IMPRISONMENT (FOR EXAMPLE, LEGISLATION COVERING SUCH MATTERS AS STANDARD NON-PAROLE PERIODS, MANDATORY SENTENCING, MAXIMUM PENALTIES FOR PARTICULAR OFFENCES, ETC) OR LESS INDIRECTLY (FOR EXAMPLE, AVAILABILITY OF NON-CUSTODIAL SENTENCING OPTIONS, PRESUMPTIONS IN FAVOUR OF BAIL, AVAILABILITY OF PAROLE, ETC). [ii]

 

* * *

 

At one stage Kwementyaye was clearly emotionally distressed and can be seen on the CCTV footage to be sobbing and groaning. He was incapable of taking his own shoes off and he lay on the floor barely moving while another detainee took them off for him at the request of police. The CCTV shows Kwementyaye lying on the floor for several minutes while several officers walk around him, concerning themselves with the other things. As he lay there, police were joined by Sergeant William McDonell, who was performing the role of Watch House Commander. He appeared untroubled by Kwementyaye’s state, in spite of observing a smear of blood on the reception floor caused by a laceration above Kwementyaye’s right eye. Sergeant McDonnell merely cleaned up the blood smear, asked who Kwementyaye was and ordered him to get up. Kwementyaye did not respond, but Sen Sgt McDonnell was then distracted by another detainee and he left the area.

After repeated commands from Constable Evans to get up, Kwementyaye managed with some difficulty to lift his weight up onto the bench seat, but he was obviously unsteady and lacked control of his faculties. Soon after he sat down on the bench, he got up and leant against the wall. “He was then sat back down, firmly but fairly by Constable Evans.” Kwementyaye stood up again, but this time, “instead of firmly guiding him again or giving him a stern verbal direction, Constable Evans pushed him hard with an open hand and sent him sprawling backwards into the wall.”

After the push, Kwementyaye “looked upset and picked up a blue plastic property box that was between him and another prisoner. He did so in a drunken manner, and the plastic box was easily taken from him by an older man seated beside him who was being processed as a protective custody.” Constable Evans looked relatively unperturbed and motioned for Kwementyaye to put the box down. Kwementyaye stood up with a clenched fist, although his arm and fist stayed down by his side. In response, Constable Evans “grabbed him by the arm and slung him towards the reception counter with undue vigour, causing Kwementyaye to hit his arm and head on that surface.”

 

* * *

THE CRIMINAL JUSTICE SYSTEM CONSTITUTES SOCIAL GROUPS AS THREATS,’ CUNNEEN WRITES, ‘AND REPRODUCES A SOCIETY BUILT ON RACIALISED BOUNDARIES. INDEED IT HAS BEEN ARGUED THAT THE PROCESS OF CRIMINALISATION ITSELF NOW CONSTITUTES A SIGNIFICANT RACIALISING DISCOURSE – THAT IS WE UNDERSTAND RACE THROUGH DISCOURSES ABOUT CRIME AND PUNISHMENT, AND WE UNDERSTAND CRIME AND PUNISHMENT THROUGH IMAGES OF RACE.  THE NORTHERN TERRITORY INTERVENTION PROVIDES A PARTICULARLY GRAPHIC EXAMPLE OF THE CONSTRUCTION OF INDIGENOUS MEN IN PARTICULAR AS SEXUAL AND PHYSICAL ABUSERS OF WOMEN AND CHILDREN. SUCH ABUSE WAS ALSO LINKED TO TRADITIONAL ABORIGINAL CULTURE. AN INCREASED CRIMINAL JUSTICE RESPONSE WAS SEEN AS APPROPRIATE TO DEALING WITH THE PERCEIVED PROBLEM AND INDIGENOUS IMPRISONMENT RATES IN THE NORTHERN TERRITORY HAVE CONTINUED TO INCREASE DRAMATICALLY.

 

* * *

 

Kwementyaye was then spread out on the ground and searched by Constable Evans, assisted by Constable Blansjaar and Constable Grey. It is apparent from the CCTV footage that where his head was positioned, a small pool of blood formed from the leaking wound above his eye brow. Kwementyaye was then carried face down to Cell 9 by the three officers, with one on each arm and one picking up his legs. Prison officer Parker hurriedly threw a mattress into the cell on an awkward angle which stretched diagonally across the two concrete slabs in the room, and Kwementyaye was placed faced down at the same angle without anyone moving the mattress into a more comfortable position.

When Kwementyaye was carried along the corridor, blood from the head wound fell in droplets on the floor. That drew the attention of four or five sober prisoners in cell 16 who saw the blood and called out to the officers, telling them that the man they saw should be taken to hospital. After being placed on his mattress Kwementyaye was left alone in Cell 9. What happened next was captured on CCTV. Seconds after being placed on the mattress, he rolled onto his back and hit his head on the concrete bench. A minute later he attempted to stand up but fell hard onto the bench, hitting his head again. At 10.14pm, he attempted to sit up but fell and landed face down with his head and chest on the bench and the rest of his body on the floor.

Soon after Kwementyaye was placed into Cell 9, Prison officer Parker began a series of brief but regular checks, which involved her standing in the corridor and looking in to confirm that he was breathing. Prisoners in Cell 16 were watching from their vantage point and, once again, expressed their concern that Kwementyaye needed immediate medical care. In her own words, this was Prison officer Parker’s response: “I just turned around and I might have been out of line when I said it but I just turned and said, ‘Well, youse all carry on like this when youse are drunk,’ and you know, ‘And when youse are sober you just want to be nice to us,’ then I – I think I’ve walked off.”

At around 11pm the evening Watch House shift changed over to the overnight shift.

Over the next two hours, the two officers on duty rarely left their desks; only three cell checks were done by Constables O’Keefe and Kershaw. In evidence they admitted being distracted from their duties ‘by various things, including an iphone, an ipod and the internet.’ The officers also failed to respond to the distress calls made by prisoners in Cell 16, who could see and hear that Kwementyaye was in trouble.

 

* * *

 

INCREASED POLICE NUMBERS IN ABORIGINAL COMMUNITIES WAS A KEY MEASURE OF THE NORTHERN TERRITORY INTERVENTION (2007). THIS HAS TRANSLATED INTO OVER-POLICING, RACIAL PROFILING AND A SIGNIFICANT INCREASE IN THE LEVEL OF ARRESTS. AS ALTMAN AND HINKSON NOTE OF CENTRAL AUSTRALIA, ‘MANY ARE FOR VEHICLE RELATED OFFENCES. MANY OTHERS RESULT FROM ANOTHER OF THE INTERVENTION’S MEASURES—THE OUTLAWING OF CUSTOMARY LAW, ESPECIALLY THE USE OF PAYBACK TO SETTLE DISPUTES. WHEN ABORIGINAL PEOPLE ATTEMPT TO USE THEIR OWN CUSTOMARY MEASURES TO RESOLVE SIGNIFICANT TRANSGRESSIONS, POLICE WHO ONCE TURNED A BLIND EYE ARE NOW LEGALLY OBLIGED NOT TO DO SO. [iii]’

 

* * *

 

At 11.44pm, prisoner Warren McDonald activated the call button in his cell. It is clear from CCTV footage that he and other prisoners were looking across to Kwementyaye in Cell 9. The Coroner writes that, “it is likely that the prisoners in Cell 16 were seeing Kwementyaye in the last moments he was alive and at the last opportunity police had to save his life. I heard from Warren and Kyle McDonald and from Mr Impu that they could hear distressing noises from Cell 9, described by the men as coughing, gasping and choking. A review of CCTV footage shows that the last movement of Kwementyaye’s body was a very slight twitching of his limbs, at 11.42pm, just two minutes before the call button was activated.”

The call rang three times over several minutes. Constable O’Keefe answered the call a few minutes later, however, he hung up the receiver, “because when he glanced up at the CCTV screen in front of him and could see that the prisoners in cell 16 were seated back on their mattresses.”

The prisoners gave evidence that they also tried to get the attention of police on more than one occasion, by calling out. The report notes that, Officer Kershaw had “shut the door between the corridor and reception area, in order to block out the noise of a prisoner who was at the end of the row of cells where Kwementyaye was housed.”

When Sen. Sgt Barram returned to the Watch House at 1.30am, he commenced a round of cell checks and at 1.41 am, he noticed that Kwementyaye had not moved from the position he had last seen him in at 11pm. The Watch House Commander moved straight to Cell 9, entered it and found that Kwementyaye was not breathing. He yelled for an ambulance to be called and commenced CPR, but his body was cold. According to the Coroner’s report, “he had probably passed away around two hours earlier.”

In October 2012 Deputy Chief Minister Robyn Lambley ruled out taking disciplinary action against any of the Police officers involved. This is the story of so many Aboriginal Deaths in Custody. All the facts and figures in the world cannot account for this level of institutionalised racism. There is nothing post- about colonialism in Australia.

* * *

 

ABORIGINAL & TORRES STRAIT ISLANDER PEOPLE COMPRISE 2.5% OF THE TOTAL POPULATION IN AUSTRALIA, & YET THEY COMPRISE 26% OF THE TOTAL PRISON POPULATION.

 

 

ABORIGINAL & TORRES STRAIT ISLANDER PEOPLE COMPRISE 32% OF THE TOTAL POPULATION IN THE NORTHERN TERRITORY, & YET THEY COMPRISE 82% OF THE NT PRISON POPULATION.

 

 

THE IMPRISONMENT RATE OF ABORIGINAL & TORRES STRAIT ISLANDER PEOPLE HAS RISEN 46% IN THE NORTHERN TERRITORY IN THE PAST DECADE & CONTINUES TO RISE. [iv]

REST IN PEACE KWEMENTYAYE BRISCOE & ALL WHO HAVE DIED AT THE HANDS OF POLICE WHILE IN CUSTODY.

 

 

 

---

[i] All in-line quotations taken from the Coroner’s Report: http://www.nt.gov.au/justice/courtsupp/coroner/inquestlist.shtml

[ii] Chris Cunneen (2011)

[iii] Jon Altman & Melinda Hinkson (2012)

[iv] Bureau of Statistics (2011)

 

 

More exclusion please: Gove Land Rights (1971) and Justice Blackburn’s ruling against Yolŋu claimants

 

 

The Gove Land Rights case – Milirrpum v Nabalco Pty Ltd, (1971) 17 FLR 141 – was the first litigation on Native Title in Australia. Justice Blackburn ruled against the Yolngu claimants on a number of issues, rejecting the doctrine of Aboriginal Title in favor of terra nullius. His ruling says a great deal about the Balanda (white people, European) concept of ‘private property’ and the social relations that comprise it.

 

‘I think that property, in its many forms, generally implies the right to use or enjoy, the right to exclude others, and the right to alienate. I do not say that all these rights must co-exist before there can be a proprietary interest, or deny that each of them may be subject to qualifications. But by this standard I do not think that I can characterize the relationship of the clan to the land as proprietary.

 

It makes little sense to say that the clan has the right to use or enjoy the land. Its members have a right, and so do members of other clans, to use and enjoy the land of their own clan and other land also. The greatest extent to which it is true that the clan as such has the right to use and enjoy the clan territory is that the clan may, in a sense in which other clans may not (save with permission or under special rules), perform ritual ceremonies on the land. That the clan has a duty to the land-to care for it-is another matter. This is not without parallels in our law, which sometimes imposes duties of such a kind on a proprietor. But this resemblance is not, or at any rate is only in a very slight degree, an indication of a proprietary interest.

 

The clan’s right to exclude others is not apparent: indeed it is denied by the existence of the claims of the plaintiffs represented by Daymbalipu. Again, the greatest extent to which this right can be said to exist is in the realm of ritual. But it was never suggested that ritual rules ever excluded members of other clans completely from clan territory; the exclusion was only from sites. The right to alienate is expressly repudiated by the plaintiffs in their statement of claim.

 

In my opinion, therefore, there is so little resemblance between property, as our law, or what I know of any other law, understands that term, and the claims of the plaintiffs for their clans, that I must hold that these claims are not in the nature of proprietary interests.

 

That disposes of the question in general terms, but it is proper also to consider the applicability of the Lands Acquisition Act 1955-1966. That Act does not define “property” but defines ” interest,” in relation to land, as “(a) a legal or equitable estate or interest in the land; or (b) a right, power or privilege over, or in connexion with, the land” (s. 5 (1)). The earlier Act had substantially the same definition, applied to “land,” with the inclusion of the word “easement.”

 

The Solicitor-General submitted shortly (the point, in his submission, did not require extensive argument) that the Act does not apply to any interest other than one already known to the law of property at the time when the Act was passed.  It therefore could not protect the plaintiffs’ interests. I do not think I need decide the theoretical question whether a proprietary interest of a new kind which was created, or held to exist, after the passing of the Act, would be protected by it. Mr. Woodward submitted that the words “right, power, or privilege over, or in connexion with, the land” were wide enough to cover “communal native title” which was shown by the evidence to be vested in the Rirratjingu and the Gumatj in respect of the land attributed to their respective clans. With respect, I think this is begging the question. It amounts to saying that whenever aboriginal natives are found in occupation of land under a system which does not recognize private property in land, that is “communal native title,” and that that alone is sufficient to attract the protection of the words “right, power, or privilege over, or in connexion with, the land” in the Act.’

 

 

- Federal Law Report, Milirrpum and other v. Nabalco Pty. Ltd and the Commonwealth of Australia (1971, pp. 272-273)

 

 

 

 

 

 

Moral work and Social order: A note from Chapter 7

Apologies for the relative silence of late, I have been working day and night on Chapter revisions. Anyhow, dhuwala ŋayi brief note from Chapter 7.

 

 

 

 

 

* yes, the last line is a nod to Graeber.