According to United Nations secretary-general António Guterres, the world is “on a highway to climate hell with our foot still on the accelerator”. It is not only the hell of human lives and species lost amid climate chaos, but also the hell of mental ill-health from what world health expert Dr Lynne Friedli has described as “economic growth at the cost of societal recession”: in too many situations, we are putting financial gain ahead of communities and nature.
Indigenous leaders are some of the clearest voices recognising that it can’t be business as usual. As they stand, Western laws are inadequate for the task of preventing climate change and ensuring protection of Indigenous sacred sites and the cultural, spiritual, environmental, social and World Heritage values of these unique places.
But the solutions are right before our eyes. If we are to survive, we need to understand how different systems work together; and the relative roles and responsibilities of participants in integrated systems. Those include biological systems, such as ecosystems, but also human systems, such as law.
Solving climate change is impossible without reforming the politics of money. This is critical if we want to create peace with Indigenous people and with nature. Indigenous philosophy and First Law can help build better legal and institutional systems for all.
As law scholar Christine Black has written, First Law, or customary law, says the law comes from the land and not from man. It was nature that bestowed these laws. The ancient (but continuing) First Law stories, using animals, birds, the wind, the moon and stars to create objectivity, teach people to be good and decent human beings to each other, but also to respect their teachers.
Indigenous leaders across the planet recognise First Australians as the oldest living culture on the planet. First Australians say to address climate, we must return to a system that has stood the test of time, some 60,000 years or more: a bioregional governance model.
This dictates that jurisdictional areas are created not by arbitrary lines on a map, but dictated by biology and geography. Governance for bioregions links Indigenous rights, environmental rights, and what legal scholars Kabir Bavikatte and Tom Bennett describe as biocultural rights – that is, a “community’s long-established right, in accordance with its customary laws, to steward its lands, waters and resources”. As a distinct order of rights, biocultural rights seem to offer a way to bring legal regimes together.
Biocultural rights are grounded in a moral law of obligation. They demand ethics of care and love for everyone and everything around us as understood by an Indigenous world view. They rely on trust, reciprocity and a lifelong practice of stewardship. This role reflects a way of life where a community’s identity, its culture, spirituality and system of governance are inseparable from its lands, living waters and people. Biocultural rights are not ‘ownership’ in the Western legal sense but rather a duty of care and protection. Corporate governance pioneer Shann Turnbull, explains these rights and responsibilities as “owneeship” rather than “ownership”.
To strengthen existing legal systems, the mindset of keeping Western law as the dominant structure should be jettisoned. Merely ‘allowing’ Indigenous law into small pockets of the overarching legal system continues a colonial mindset. Without decolonisation, rules and regulations and policy and procedure sustain business as usual.
Indigenous and Western legal scholars working together to examine alternative legal approaches is the best way to address Australia’s review of its environmental protections laws, which examine existing differences in power and authority. Together, governments can address matters of public interest impacting people and place, particularly water and environmental laws.
A biocultural approach for Indigenous nations in the Kimberley region of Australia continues to rely on Indigenous laws.
The Indigenous people of Australia’s north-west have for millennia lived and created a continuous knowledge system. The knowledge could be applied more broadly to take humanity into a new era where the economy is not based on an extractive system, but based on that collective wisdom and the sharing between non-Indigenous and Indigenous people. As the people of the Kimberley say, we need to “wake up the snake” of that knowledge. Waking up the snake brings everyone along.
Professor Anne Poelina is a Nyikina Warrwa woman from the Kimberley region of Western Australia. She is an active community leader, human and earth rights advocate, filmmaker and a respected academic researcher. She declares no conflict of interest.