Settler Contract or Natural Contract?

Last week I participated in a very interesting conference on the topic of legal diffusion put on by Juris Diversitas and the Swiss Institute of Comparative Law. Bronwyn Lay, a lawyer, writer, and scholar, gave a thought-provoking paper entitled "Settler Contract or Natural Contract". Hopefully it will be published soon; meanwhile, here's an excerpt:

In The Natural Contract the French philosopher Michel Serres argues that western jurisprudence ignores Nature, to the point of violence. Serres departs from Rousseau’s concept of the social contract, and proposes a global contract of reciprocity and symbiosis between Nature and humanity. The Natural Contract is based upon the bonds between Nature and the human.  Prior to white settlement, indigenous Australians upheld what could be termed a ‘prior natural contract of reciprocity and symbiosis’ between country and humans. According to Weir ‘country’ is an indigenous Australian term to describe their traditional lands and waters, but has a broader legal meaning, as it encompasses the rules for existence. Country is expanded connectivity and within it land, and other matter, has recognition and identity apart from instrumentalism and ownership. 

Upon invasion in 1788 Australia was declared terra nullius, empty nature, all previous laws were extinguished and the settler contract enforced. In the Mabo decision of 1992 the Australian High Court overturned terra nullius, which entailed judicial recognition that two different material legal histories co-existed across Australia. While the High Court upheld western sovereignty and land tenure, Mabo importantly recognised pre-existing legal bonds between indigenous Australians and ‘country.’ 

Many have argued that Mabo and the subsequent Wik decision were ‘cunning’ recognition of indigeneity, as the main principle for land claims was evidence of ‘continuous connection to land’ by particular humans. At minimum, a bond is between two entities. Recognition of a bond presupposes the recognition of parties that constitute the bond.  In Mabo the indigenous person was recognised as participating in a bond, but the reciprocal and ever changing relationship between country and body was limited to traditional human practises. The other entity that constitutes this bond, country, was not recognised and therefore its rights weren’t considered. Human subjectivity and human sovereignty were thresholds the law refused to go beyond and the judicial containment within western ontological frameworks meant that the voice, standing and legal rights of ‘country’ in their fullest sense could not be recognised. 

In order to provide stability, enable recognition and fulfil justice to indigenous Australians, country was filtered through the labyrinthine legal structures of subsequent Native Title legislation. Many natural contracts with country weren’t recognised, and in successful claims indigenous land practises and relationships were parcelled into ‘native titles’ dependent upon human actors and territory, rather than legal recognition of reciprocal and symbiotic exchanges between and within country. Decades later the indigenous estate now constitutes almost 20 percent of Australian land ownership. But if we presume that the bonds of country could be legal entities themselves, and country participates in this bond, the prior natural contract between indigenous people and country wasn’t fully recognised. 

For example in Native Title legislation ‘the future acts process’ in relation to mining companies and others who claim an interest in land under native title has proved to be a nominal ‘option’ to discuss, rather than equally negotiate, the minimisation of cultural and environmental damage to country. Common law has also been unable to incorporate the full sense of indigenous law as seen in the Croker Island Case where traditional custodians, sea peoples, were refused seabed rights which are inextricably linked to their customary practises.

In Australia Mabo commenced a belated exploration of coexisting environmental legal histories. But until the full complexity of these divergent materialities is faced, inequality will continue. Despite recognising two remarkable different environmental legal histories in Australia, Mabo reveals that western jurisprudence stumbles at the precipice of a Natural Contract. Until the material world is judicially incorporated as a separate legal entity and the locus of indigenous customary law, country, will remain unrecognised and vulnerable.