Barbara Lepani—in her Opinion article on revisioning conservation for the ABC Religion and Ethics Report (18 Dec 2019), Professor Freya Mathews, a patron of the Wild Mountain Collective, also discusses the important difference between the modern Western idea of ‘law’ and the idea of ‘Law’ in Aboriginal culture. We see this playing out in the distinct difference between the Aboriginal idea of ‘cultural burning to care for country’ and the Western idea of ‘fighting bushfires to protect assets be they human life, property or biodiversity’.
This epistemic and cultural challenge discussed here by Professor Mathews is one of my core interests in the work of the Wild Mountain Collective. If we are to accept the inviation of the Uluru Statement from the Heart to walk WITH our First Nations peoples to forge a new national identity that is founded on Australia’s ancient 65,000+ years of cultural heritage, then we need to understand the deep differences between its worldview, grounded in a profound spiritual eco-consciousness and kept alive in the songlines that criss cross Australia, and the dominant scientific-materialist worldview of contemporary Australia drawn from our British heritage dating from the Industrial Revolution. It is a worldview dominated by objectivism, as a result of the emphasis on ‘being objective’ in the way we view things, and on economism, in the reduction of almost all relationships and aspects of society into transactional economic factors.
First Nations peoples have had to find ways of living with these two conflicting worldviews, reinforced by their daily experience of racism and cultural prejudice, and the intergenerational trauma wrought by the history of colonial policies and the frontier wars. Closing the gap is not just about education, jobs, access to services and how long we can expect to live.
The Truth Telling that the Uluru Statement from the Hearth calls for, requires us to acknowledge all this. The Climate Crisis wrought by global warming arising from industrialisation is not just a question of a just transition to a renewable energy economy versus a fossil fuel energy economy. It is a deeper moral and spiritual crisis about our worldview anchored in economism and objectivism, in a growing spiritual crisis of anxiety, depression, alienation and loneliness among people of all ages in our society. It is reflected in the moral bankruptcy of our political discourses and the narratives that journalists spin about us in media, and which inform our social media conversations.
What is LAW?
Law, as understood throughout Aboriginal Australia, is regarded not as mere convention, a mere human construct, as Western systems of law are, but as an inherent dimension of normativity textured into reality itself: Law is already immanent in land.
Based on accounts offered by Indigenous scholars such as Mary Graham, Christine Black and Irene Watson, and by the elders of Yarralin who taught anthropologist Deborah Bird Rose, we might say that Law is essentially a law of relationship.
Its central aim is continually to draw competing interests and opposing forces into dynamic states of mutual dependence, thereby preventing any one force or set of interests from overwhelming another. This translates as an ethos of balance, reciprocity and harmony applicable to our relations both with our fellow humans and with all other species.
A Moral Dilemma
A moral dilemma arises for the conservation movement when the aims of conservation clash directly with the wishes of local Indigenous communities. But conservationists seem rarely to subject this dilemma to serious examination. That is what I would like to do, albeit in outline, here.
In speaking of conservation, I am referring to the political movement to reserve, or afford official protection to, ecologically significant areas rather than merely to the practice of managing already protected areas. Since opportunities for large-scale conservation — conservation of vast, relatively ecologically intact areas — often occur in Indigenous homelands, I think it is important that conservationists do examine their moral position in this circumstance.
To distil the moral elements of the dilemma at issue here, let us assume an ecocentric, not merely anthropocentric or exclusively human-centred, position on the part of conservationists — that is, let us assume that the moral premise of conservationists encountering the dilemma is that other-than-human beings, communities and life-systems are entitled to full moral consideration in their own right and not merely on account of their utility for humans.
From such an ecocentric perspective, it is clear that our moral responsibility as humans is currently globally weighted heavily toward the other-than-human side of the justice scales: humanity has taken and destroyed so very much of earth-life that any large, remaining, relatively intact ecological estates have a huge and urgent moral claim on us. From such a perspective, over-riding that claim in favour of the claims of a tiny community of local people seems human-centred or biased towards humans, and hence unjust, in the extreme. However, where the people in question are Indigenous traditional owners, the situation is not so clear cut, and the ecocentrist may be forced to interrogate her moral priorities.
The Case of James Price Point
As a case study for thinking through this dilemma, let us take the struggle that played out some years ago at James Price Point in the Kimberley. The Kimberley is largely Indigenous territory: almost half of its permanent population identifies as Aboriginal and over 80 percent of its area has been determined as native title land. In 2008 the gas company, Woodside, announced its intention to install a huge gas plant on the coastline of the pristine Dampier Peninsula at James Price Point in order to process gas from the off-shore Browse Basin.
The West Australian government was very keen that this project should go ahead because they saw the establishment of an industrial port at James Price Point as a gateway for the industrial development of the Kimberley as a whole. Local conservationists, and conservationists from around Australia, rallied to oppose the gas hub in a desperate bid to prevent this industrial assault on the ecologically iconic Kimberley. For Woodside itself, immediate financial considerations seemed uppermost — would such a new hub prove cheaper than piping gas down to the existing hub at Hedland?
Nominal consent for the development at James Price Point was sought by Woodside from the Kimberley Land Council, the principal native title body for traditional owners in the Kimberley. Native title claimants for James Price Point included the Jabirr Jabirr and the Nyul Nyul. The Kimberley Land Council brokered a deal of $1.4 billion in exchange for Aboriginal consent. A much smaller group of native title claimants, the Goolaraboloo, opposed the development, and this group was strongly supported by conservationists.
It is well known that traditional Aboriginal culture, and particularly traditional Law, while being both various across the continent and in many, many ways distinctively Aboriginal, nevertheless has deep affinities with the kind of outlook described by environmental philosophers as ecocentric. Law, as understood throughout Aboriginal Australia, is regarded not as mere convention, a mere human construct, as Western systems of law are, but as an inherent dimension of normativity textured into reality itself: Law is already immanent in land.
Based on accounts offered by Indigenous scholars such as Mary Graham, Christine Black and Irene Watson, and by the elders of Yarralin who taught anthropologist Deborah Bird Rose, we might say that Law is essentially a law of relationship. Its central aim is continually to draw competing interests and opposing forces into dynamic states of mutual dependence, thereby preventing any one force or set of interests from overwhelming another. This translates as an ethos of balance, reciprocity and harmony applicable to our relations both with our fellow humans and with all other species.
In light of the deeply ecological tenor of Law, one might expect strong alliances to form between conservationists and traditional owners in the face of development threats to Indigenous homelands. But the actual reaction of Aboriginal stakeholders to such threats historically, as the James Price Point case illustrates, has been more complex. Traditional values and understandings in any given society evolve out of praxis, or the basic forms of organised economic activity people undertake in order to survive. The forms of consciousness and identity that arise in a foraging society, for instance, will be very different from those that arise in, say, a pastoral society or a society that is highly industrialised.
Praxis itself represents a response to the material conditions or opportunities afforded by the environment of the society in question. When material conditions change, praxis has to change, and traditional understandings and values may be left high and dry. People cannot live by tradition alone. If tradition cannot secure a people’s livelihood, those people may, however reluctantly, have to set it aside.
In the case of James Price Point, the majority of those with a claim to traditional ownership of the affected area were, as I have said, indeed willing to set their traditional covenant with Country aside in favour of the Woodside development. I don’t have space to go into the tortuous details of the case here, particularly the ways in which the West Australian government sought to force the hand of the Kimberley Land Council. The upshot of its threats and incentives, however, was that the Aboriginal community was severely divided between those in favour and those against the development, leaving conservationists, who generally tend to be in sympathy with Indigenous causes, in the awkward position of having to oppose the majority of Aboriginal stakeholders.
In March 2013, Woodside announced that the gas plant would not proceed at James Price Point. Conservationists claimed victory on behalf of the Goolaraboloo, though Woodside cited strictly economic reasons for their decision. In late 2017, there was a bitter coda to the apparent victory of the Goolaraboloo: the Federal Court finally handed down its native title determination for the mid-Dampier Peninsula, where James Price Point is located. Native title was awarded to the Jabirr Jabirr, Nyul Nyul and several other local groups; the claim by the Goolarabooloo was wholly rejected, on legally firm grounds.
In the wake of the decision, resentment against the Goolarabooloo, but particularly against the conservationists and “celebrity activists” who had supported their opposition to the gas plant, flared. Wayne Bergmann, who, as CEO of the Kimberley Land Council during the James Price Point affair, had negotiated the prospective $1.4 billion compensation deal, complained that environmentalists had helped “destroy a huge economic opportunity … They used the cloak of indigenous people, but they had their own agenda, and that was ‘no development at any cost’.” Jubilant spokesmen for the Jabirr Jabirr made no bones about the fact that in future they would welcome development opportunities like those that had been proposed by Woodside.
In some ways, Bergmann’s remark was correct: the green alliance with the Goolarabooloo was surely, at least in part, expedient. Conservationists supported the Goolarabooloo because doing so enhanced their own cause. They opposed the Jabirr Jabirr, and some even accused the Jabirr Jabirr of “selling out,” despite the Jabirr Jabirr turning out later to have a stronger native title claim, legally speaking, than the Goolarabooloo. We might wonder, then, how genuinely in sympathy conservationists were with the centuries-deep chasm of humiliation and dispossession out of which the Jabirr Jabirr reached up to grasp at the economic “bait” which industry dangled over their heads.
At the same time, however, conservationists were moved by a proportionate sense of ethical anguish — a sense that the fight for the Kimberley was an epochal stand against the blind, brutal and needless war that modern civilisation is currently waging against a planet at the point of biospherical collapse.
The Conflict of Competing Moral Interests
So, what ideally should the position of conservationists be in face of such conflicting moral claims — the claims of Indigenous communities versus those of the environment?
Clearly, the first step is fully to appreciate the afore-mentioned “centuries deep chasm of humiliation and dispossession” in which parts of the Aboriginal population still dwell, forced to co-exist with their colonisers, under the colonisers’ laws, without any hope or prospect of eventual independence. Traditional owners know they cannot, under native title legislation, veto mining projects on their land. At most, they can impose conditions and negotiate jobs and economic packages. Might not a package of $1.4 billion appear to a small Aboriginal community as a fast track to something akin to “independence” — an economic form of the self-determination that political independence has delivered to once-colonised peoples in other countries?
What by comparison do conservationists offer? A warm affirmation of Aboriginal tradition, yes, particularly the custodial tenor of that tradition, but perhaps without sufficient awareness that tradition must be underpinned by the economic praxes that gave rise to and sustain it. Conservationists gesture in the direction of economic enterprises — eco-tourism, Indigenous land management, Aboriginal arts and crafts — that might generate income in ways consistent with both Aboriginal tradition and large-scale conservation. But can such industries really support entire communities in the Western lifestyles that have, irreversibly, been thrust upon them?
If conservationists are to secure Aboriginal commitment to large-scale conservation in Aboriginal homelands, then presumably they must, where Aboriginal communities are divided on the issue, offer more than cultural affirmation. They must surely help to provide what Aboriginal people most urgently require: a new economic basis for Aboriginal culture together with practical support in the Aboriginal struggle for sovereignty.
To ignore these bedrock needs, and oppose Aboriginal consent to development on the grounds that securing the integrity of the biosphere is a greater good than merely securing economic benefits for a tiny community of marginalised humans, is for conservationists to risk compromising their own moral integrity — and hence ultimately the integrity of their own ethical project.
For the moral question at issue here is not only to whom is more owed — the Earth or a small community of humans. From an ecocentric perspective, clearly more is owed to Earth, by many orders of magnitude. But since not everyone shares an ecocentric perspective, or finds it self-evident, another moral question at play in this situation is the question of when and under what circumstances is it justifiable to insist on one’s own ethical convictions at others’ expense. It is after all one thing for conservationists to adopt an ecocentric perspective for themselves and argue that their own society ought to adopt it too. It is another thing to insist that all societies adopt it.
Insisting on this is particularly problematic when the conservationists in question, though members of the affluent West, nevertheless argue that groups impoverished and marginalised as a result of Western colonialism should be economically disadvantaged, against their own wishes, in deference to a Western — in this case, conservation — ethic. When the conservationists themselves are in no way disadvantaged by the proposed moral intervention, the ethical dubiousness is compounded. It is even further complexified when the Aboriginal party has been forced by colonialism to abandon traditions that were themselves at one stage akin to ecocentrism in their general orientation.
In other words, in conflicts between conservationists and Aboriginal parties, the question of standpoint matters. Insofar as conservationists are outsiders to Aboriginal Australia, and directly or indirectly represent the colonising party, they must be scrupulously reflexive in their relations with Aboriginal stakeholders if they are not to compromise their own ethical ground.
So, what might the conservation movement in Australia look like were it to internalise the struggle for Aboriginal justice, making this integral to the struggle for ecological justice, rather than merely trying to engage Aboriginal communities as allies when expedient?
The respect for Aboriginal knowledge and Law to which lip service is already paid in conservation thinking might, in a newly indigenised form of the movement, entail not only employing Indigenous rangers and managers on the ground in protected areas — where this is already happening to a significant extent — but also requiring of non-Indigenous conservationists that they partially relinquish their status as experts, re-learning conservation from the perspective of Aboriginal tradition. This would mean not only making the effort required to bridge the huge epistemic and ontological gulf between Western science and Aboriginal systems of thought, but also revising and rewriting conservation policy in light of always locally specific Aboriginal Law.
For this to be feasible, conservation policy makers would need to be enculturated into Aboriginal Law as well as educated in their own conservation sciences. Instruction in Aboriginal Law would best take place in situ rather than in centralised educational facilities, such as universities, since Aboriginal epistemologies are not only local but essentially experiential rather than abstract: Aboriginal knowledge is acquired on country. It can also only be fully transmitted in the relevant Aboriginal languages, since many of the descriptive and conceptual resources of those languages cannot be adequately translated into English. Without the capacity adequately to describe the environment, the capacity to manage it competently disappears.
In light of this, Aboriginal communities may be revisioned, and partly reorganised, as places of instruction — educational centres in their own right, with new professional roles and social structures created within communities to serve this purpose. The “culture and conservation economies” envisioned by both conservationists and pro-conservation Indigenous activists and scholars would thereby acquire much-needed heft.
Across large parts of Australia, then, conservation could quite readily morph into an Aboriginal-identified discipline and practice, a discipline and practice defined predominantly in terms of Aboriginal norms and knowledge. As such, it could be morally and largely materially owned by Aboriginal Australians in a way that would make it harder to abandon in the face of industry incentives, such as those offered to the Kimberley Land Council by Woodside. It could also serve as a kind of bastion of Aboriginal authority from whence Aboriginal thinking could infiltrate and gradually inform Australian culture at large. Out of this process of absorption, genuine recognition of Aboriginal dignity and political entitlement would surely come.
Indeed, from the perspective of an Indigenous-identified conservation movement, the very object of conservation might be subtly reconceived. This object has always been ill-defined. Categories such as nature, wilderness and biodiversity have all been tried, but each of these arguably fails, in different ways, fully to capture the intended object. Besides, all these categories are purely descriptive, not normative: they purport to identify what we seek to protect but do not explain why we wish to protect it, what is the norm or value that conservation serves. Perhaps the explicitly normative category of Law, understood in the Aboriginal sense but duly adapted for use in a wider context, may prove a deeper, more adequate way of conceptualising both the object and purpose of conservation.
If the object of conservation were thus understood to be Law itself, then this would encompass, by extension, the sphere of everything that follows Law. While this would include the sphere of relatively undisturbed ecosystems, since these operate in accordance with Law, it would also include human societies that understand and seek to practise Law. In Aboriginal homelands, then, the aim of conservation would be to protect ecologies, yes, but also to help communities retain their grip on Law.
To enlarge the scope of conservation in this way would require of non-Indigenous conservationists that they re-situate themselves in relation to the project. If our goal as conservationists is not so much to “save the world” — specifically the natural world — with our own role in this project remaining unexamined, but is rather to protect Law as a moral imperative and all who follow Law, then the central question for us becomes: how are we ourselves to become followers of Law? As my colleague, Nia Emmanouil, puts it, the central question around which we would then organise both our conservation efforts and our own identity would be: how can I become a Lawful person in this land?
To adopt this view of conservation is not to suggest that we should give up efforts to protect nature in far-flung places, but that we should try to bring into clearer focus, and re-situate ourselves within, the larger normative orientation of which conservation is a part.