The Law of the Land

The river is a presence physical, metaphorical and symbolic, beyond culture, place and time. Human roots, like those of the river she-oak growing outside my window, have long intertwined with water and soil. River language is evocative. In English we talk of headwaters and tributaries, confluence and current; we meander, trickle, flood, flow – and all these words mean more than one thing. But when the river breaches the levee of Western law, the language changes tone. River becomes resource, water becomes commodity.

Marlikka Perdrisat is a Nyikina Warrwa and Wangkumara Barkindji woman who belongs to Martuwarra, the Fitzroy River. Winding 700 kilometres from the east Kimberley to King Sound near Derby, Martuwarra is nationally heritage listed for its cultural and environmental values, and is the largest registered Aboriginal cultural heritage site in Western Australia.

‘The river [Martuwarra] is a really special place. It’s not only where I have so many memories of growing up with my family or learning the names of different animals, this river bonds the spiritual and human world together,’ she tells me during a video call from her home in Broome. Marlikka is a member of the Martuwarra Fitzroy River Council, an alliance of Traditional Owner groups working together to protect the Fitzroy River catchment from invasive development such as industrial agriculture and gas fracking.

Marlikka Perdrisat. Photo: Harry Jakamarra

TO THE MARTUWARRA Fitzroy River Council, the river is not a resource to be tapped, but an ancestral being. Its status is recognised in first law, but not in Western law. It will be, though, if the Council has their way. ‘We really want find ways to strengthen our protection of Martuwarra,’ Marlikka says. ‘One of the ways we’re looking at doing that is through ancestral personhood which looks at legal personhood and rights of nature.’ The organisation is looking to precedents, such as the Whanganui River in New Zealand, which in 2017 was granted legal personhood. But they’re hoping to take it further: ‘Instead of going okay, let’s give the river its own identity as we do a corporation, let’s look at how we protect it as if it were a grandparent or a relative. Although we want protection in the Western system, we don’t want to completely give up how we see our relationships.’

Martuwarra, the Fitzroy River. Worla Country. Photo: Harry Jakamarra

MARLIKKA IS WELL PLACED to be navigating such landscapes. She’s a law graduate from the University of Sydney, and grew up on Country, spending time with Elders and learning first law, which is ‘law of the land, not law of man’. After studying law at university, she says, she soon began to realise that ‘the Western world is crumbling, turning into climate chaos. First law has the tools to create coexistence and strong relationships, to nurture the climate.’ She began asking questions like, ‘How do we merge corporate law with Indigenous law?’ She was, given her knowledge of both legal systems, ‘in a really unique position to be able to do that’.

First law, Marlikka tells me, is told in song and story. ‘It’s a metaphor that’s handed down and you have to kind of decode it and understand the meanings, and realise that the mythology holds so much law, philosophy and science that has kept our Country going for so long.’

‘In my tribe, we have a legal system which looks at the relationships you hold with human beings, and non-human beings,’ she says. They also share a legal system with about six other tribes along the river which addresses how each coexists with the others. ‘Because if somebody at the head of the river does something wrong, the people at the lower end will be affected by it. So all of us have to co-govern together.’ On top of this, there is Wunan law, the regional law for the whole Kimberley region, which governs how the ‘river people connect to the people of the desert, connect to the people of the hills’. In a relatively small geographic area, like the Kimberley, there are at least three legal systems per tribe, Marlikka says. ‘It’s much more complex than just categorising it as folklore and bedtime stories.’

And yet, this is what we’ve done. As I write a list of questions prior to my interview with Marlikka, I spell law as lore without thinking. Language as colonisation. ‘To frame our law system as folklore makes it seem like complete mythology, it’s not real, it’s a fantasy, it’s a bedtime story for a young child,’ Marlikka says. ‘And as soon as you put it into L-A-W, you realise it has the same legitimacy as the Western legal system.’

Martuwarra, the Fitzroy River. Photo: Harry Jakamarra

THE MARTUWARRA FITZROY RIVER Council is an example of how first law and Western law can coexist – ‘It is looking at how we can decide things together with consensus, not being ruled over the top by one group,’ Marlikka says. The organisation lobbies government, writes submissions and challenges current legal systems. ‘We’re also doing things on a sly level as well – we might write an academic paper which has this huge idea we’re trying to push, but we’re also changing the form of methodology, like including the River as an author of the paper … even these small changes start to create a big cultural change.’

‘What we do is we bring everyone together, we share information, and then we decide by consensus how we might want to respond to a fracking proposal or the cultural heritage bill that came out last year. It’s really a way of us standing together as a community against invasive development,’ Marlikka says. Development needs to be, as Marlikka’s mother and chairperson of the Martuwarra Fitzroy River Council, Dr Anne Poelina, said to The Guardian, ‘within boundaries that are going to sustain our livelihoods, our economies, and our spiritual and cultural identity and wellbeing’.

‘If you want to do any development in the Fitzroy River catchment,’ Dr Poelina continued, ‘show us your science, let us peer review it, show us that you’re not going to create any foreseeable harm, and then we can negotiate in good faith and determine just development on just terms.’

THE AIM OF MARTUWARRA Fitzroy River Council is not only to advocate for the rights of the river in a legal and governmental context, but also to tell its stories. This is not about warm-fuzzy bedtime tales, but about providing Elders and knowledge holders with the resources they need to share their knowledge, in order to repair the relationships between human beings and Country. ‘We’re recording the first law stories, we’re recording biographies, we’re recording ancient song lines … It’s about supporting them [Elders] to raise their voice, to raise their experiences of what is happening on Country,’ Marlikka says. ‘We need to ensure that first law is shared with all Australians. Our ethics of care and love must be passed on, to create justice for all species.’

This interview was first published in Wonderground Issue Three.

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Martuwarra, the Fitzroy River. Bunuba country. Photo: Harry Jakamarra