Aboriginal women’s laws and lives

It is not my intention to give a description of past, or even present, manifestations of women’s laws because there are not one, but many Aboriginal laws and Aboriginal laws of women who live in the Australian landscape and its peoples. There are too many to describe and, anyway, it is not appropriate for me to do what is a task belonging to the law holders or the women who carry their laws, to speak of their knowledge and their ways on their own behalf. I cannot speak for others, or universalise their story or their relationships to law, country and kin, but I can speak of my own grandmothers and their status as law women. To assume the role of speaking for all Aboriginal women and our laws would itself be a breach of our law. I can say that our grandmothers held the law and that they carried and passed onto future generations what they could within a rapidly changing colonised space.

In this chapter, I want to examine present and future possibilities for the autonomy of Aboriginal women, while also reviewing the extent to which Australian colonial law enables/disables that possibility. The question then emerges: what law am I talking about, Australian and or Aboriginal law?⁹ In responding to that question, we should look at how the two bodies of law speak or don’t speak to each other,¹⁰ at how the body of Aboriginal women has been brought into Australian law, and at what happens to Aboriginal law or the laws of the grandmothers in that process of embodiment.¹¹ I don’t have the space here to give a fuller survey of how the courts have read Aboriginal law and women into the dominant legal narrative,¹² but it seems clear that the courts’ reading of Aboriginal women’s law is given less recognition than is accorded the laws of Aboriginal men. What do we conclude from this? I would suggest that it illustrates the male dominance in the Australian legal profession, a dominance that works to reinforce stereotypes of a male-dominated Aboriginal society in which women are invisible in their lawfulness.¹³ Similar arguments have been made many times in colonial encounters throughout the world, where the position of Aboriginal women is decentred as a result of the colonising mission, with the consequence that ‘… male-centred and inept interpretation(s) of Native American women’s lives’¹⁴ ultimately take(s) over.

My current research focus looks at the interface between Aboriginal law and colonialism, and attempts to develop a decolonising text, which re-inscribes a women’s law space, a space where violence against women can be sorted and reordered. However, the critical question is: can that space re-emerge when the imposed Australian legal system has taken up all of the space? What space could be accorded to Aboriginal women’s law? Perhaps space is not the only thing required but so is will: does the will exist for a male-dominant political legal system to let go, to release its hold on power over law – can it ever happen? I think these questions are central to any discussion about creating space for Aboriginal law, and women’s law in particular, to continue to function and grow in Aboriginal communities.

Looking from a universalist positioning of women, Catharine MacKinnon¹⁵ takes us back to a question Simone De Beauvoir once asked; ‘Why is it that women do not dispute male sovereignty?’ For Aboriginal women, the sovereignty of women’s law was known and recognised by men: the grandmother’s law held a sovereign position. The colonisation of Australia displaced the sovereignty of both men’s and women’s laws. MacKinnon takes De Beauvoir’s question to be universal in its application, but I argue that De Beauvoir could not have known of the position of Australian Aboriginal women and perhaps her question should have been limited to a Western political legal landscape, or even to herself. The above quote by Aboriginal Elder Betty Pierce shows that for her, the grandmother’s law or the laws of Aboriginal women, have a central place in our lives, not only in the past, but also still today. They have a place in bringing lawfulness to the current situation of endemic violence against women and young children across Australia, more than ever before. However, while the application of the grandmother’s law is known to Aboriginal people, it has been mostly invisible to the dominant culture. Thus it has been difficult for the grandmother’s law to re-establish its lawful place in the midst of a dominant culture that has no concept of Aboriginal women’s laws. The dominant culture administers and polices itself entirely within a patriarchal horizon. The problem is not so much what we as Aboriginal communities need to do, but rather the work the dominant culture needs to do in shifting the maledominant nature of its own legal system, a system that denies the presence and place of women’s law. While I am not denying the work already done by feminist theorists and activists in this area to unmask the dominant patriarchal nature of Western legal systems, what has not been recognised is the different nature of Western legal systems from other systems of law and governance. For example, Aboriginal law does not fit within the adversarial model, but rather focuses on restoring harmonious relationships amongst individuals and community members. To universalise the notion of the dominant colonial legal system is to miss the opportunity to engage with Aboriginal legal systems. As Elder Betty Pierce states:

With the whitewashing or the making invisible of women’s law came the transferred Western values, which left Aboriginal women little opportunity to represent their law stories, or hold in place our own meanings and functions of the law.¹⁷ Now we hear more about the laws of men and in particular those laws that are repugnant, for example, those that mandate old men marrying young women, or those of the payback system.¹⁸ It is these features of Aboriginal law of which the public is made most aware. Laws relating to the obligation to care for country and family, ecological sustainability, and the ethics of sharing and caring and their deeper philosophy remain largely unknown to the public. It is this unbalanced representation of Aboriginal law that has potential to lead to its demonisation.¹⁹ The public knows very little of the complexities of Aboriginal law, perceiving it as being responsible for violence against women and children.²⁰ Aboriginal women are portrayed as victims in need of rescue from violent black males. Here, I want to make it clear that I am not in denial of the contemporary position of Aboriginal women and children that is critical in many communities. What I am suggesting is that the actions of individuals who are physically and sexually abusive towards women have been blown up and taken as representative of a culturally approved norm, to the effect that Aboriginal law allows for violence against women.²¹ But the blowtorch gaze of the dominant culture and its media is never turned back on Western civilisation and its laws, which fail to protect women from male violence. Its legal system also allows for the violation and destruction of our natural environment, and we are witnessing global warming, desertification, pollution of waterways and other natural disasters, all of which are linked to inability of the ‘civilised legal systems’ to utilise its laws to better manage the looming environmental crisis.²² In contrast, the ways of Aboriginal law promote sustainability of both peoples and the environment. I think we need to engage more positively with Aboriginal laws and move away from the simplistic and racist demonisation of the first laws of Australia, to argue that the greater body of Aboriginal laws, which is a balance of women’s, country and men’s law, has a legitimate place as it always has. But there are some who wouldn’t agree. Anthropologist Peter Sutton has suggested traditional controls worked in the hunter–gatherer past, but are no longer functional where communities are tied to the permanency of resources, and that ‘rape and child abuse, have to be tackled head on and dealt with’.²³ In Sutton’s work, there is the suggestion that rape is a part of Aboriginal culture and law;²⁴ Sutton has misrepresented Aboriginal law as legitimising rape and child abuse, and has failed to understand a more complex picture, one in which the effects of colonialism and race have been excluded.

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Sutton’s analysis abstracts culture from the overall power relations between Aboriginal peoples and the dominant culture and, in its abstraction, is flawed as an explanation for the high levels of violence in Aboriginal communities. The women he portrays are victims whose lives would be better off once absorbed by the civilising mission.²⁵

The real picture is more complex. The savagery and violence of colonialism is missing from Sutton’s analysis. The narrative we don’t hear from Sutton is that of the rapes by the civilising mission men, and we don’t hear of the inter-generational trauma suffered as a result of those rapes. The history of rape and the violent colonial frontier is given almost no context in the contemporary analysis of violence in Aboriginal communities, even though the evidence of a violent colonial history is well known to us. We hear of it in our oral histories and some of those stories have also survived in the records of early colonialists. Katrina Schlunke²⁶ invokes the historical writings of the missionary Threlkeld,²⁷ who writes about the rape of young Aboriginal children in the aftermath of a violent massacre by the same white settler who perpetrated the Myall Creek massacre of 1838: