By Tabitha McDonald
Recently, my friend invited me to accompany her to an event hosted by the ANU. The event was called ‘First Nations Peace Poetics’. It wasn’t until we arrived at the event that she informed me it was a poetry reading. I leaned across my seat and asked her timidly if I was supposed to have researched the speakers.
She shrugged, and told me I knew at least one of them – Ellen van Neerven had been prescribed in an English class we had taken together. I blushed, and admitted that I’d never finished the book.
While I got over my embarrassment, we were introduced to the panel of speakers. The event was the initiative of Dr Elfie Shiosaki, a Noongar and Yawuru woman, whose research has encompassed the significance of Indigenous storytelling to rights discourses. Dr Shiosaki explained that despite the silence surrounding the failed referendum last October, ‘we can still hear the extraordinary voices of Aboriginal and Torres Strait Islander people calling for peace in their storytelling’[1]. Thus, she brought together a group of First Nations poets to share work which they thought encapsulated what 'Peace Poetics' meant. The speakers were Dr Shiosaki herself; Natalie Harkin, a Narungga woman; Kirli Saunders (OAM), a Gunai woman; and Ellen van Neerven, who is from the Yugambeh Nation.
However, it was the first speaker, Natalie Harkin, by whom I was entirely captured. Harkin, a senior researcher at Flinders University, introduced us to her latest book Archival-Poetics [2]. In the introduction to her first book, Dirty Words, Harkin states ‘archival poetics’ is a response to her ‘family’s Aboriginal records, informed by bloody memory and haunting’[3]. The hyphenation of ‘archival’ and ‘poetics’ is self-explanatory: Harkin contrasts ‘forceful poetics’ with ‘some shocking historical extracts from the State records’[4]. This is perhaps best exemplified by the poem ‘Domestic’ from Dirty Words [5]. In it, Harkin directly quotes from a 1926 publication The Australian Woman’s Mirror. By excavating the colonial archive, Harkin emphasises the callous way in which the history of the Stolen Generations was recorded.
“I got her direct from a camp some miles from here and until she
became used to things I had to tolerate the company of her mother and
younger sister for a fortnight [she] was then about 12 years …”
Listening to these authors emphasised to me how poetry can be central to the telling of Indigenous stories. As discussed by Manathunga et al, poetry has both similarities with ‘oral knowledge production evident in Indigenous cultures’ and allows for the ‘subversion of conventional English syntax and grammar’[6]. This ensures that poetry ‘embodies a creative form that is particularly well-suited to decolonisation and the transformation of postcolonial curricula and societies’[7]. While I hadn’t read van Neerven’s book for that English class (to my own disservice), I did read their brilliant poetry that I was prescribed in two others. Indigenous poetry has been the cornerstone of most English courses taken under my Arts degree – while expectedly absent from those I’d taken in Law.
When Harkin stepped up to the lectern to read from her collections, it was immediately obvious she is an experienced storyteller. She spoke with reverence, but also warmth and familiarity. However, it wasn’t until Harkin read her poem ‘Kumarangk’[8], that I realised this particular familiarity was because I was hearing a story that I had actually been told before.
“there is a small island peaceful and slow where
fresh and salt waters meet and a ferry would cross these
waters pelicans catch a free ride standing
wise proud watching for fish and dreams to
catch until ‘that’ bridge”
When I first heard the story of Kumarangk, it was under a different name: Kartinyeri v Commonwealth (‘Kartinyeri’) [9]. Taught in the compulsory subject Commonwealth Constitutional Law, Kartinyeri serves as a law student’s introduction to the Race Power. Enlivened by s 51 (xxvi) of the Australian Constitution, the Race Power permits Parliament ‘to make laws…with respect to… the people of any race for whom it is deemed necessary to make special laws’[10].
In Kartinyeri, the High Court upheld the Hindmarsh Island Bridge Act 1997 (Cth) (‘Bridge Act’). This Act took away the ability of Indigenous people to make First Nations cultural heritage applications for Kumarangk, allowing the South Australian Government to build a bridge to the island.
“how sad the people
who cannot slow down to ride
with a pelican”
Dr Doreen Kartinyeri and her counsel challenged the Bridge Act on the basis that it was not supported by the Race Power [11]. They argued that the Race Power only gives Parliament the power to make laws which benefit the people of a certain race. Therefore the Bridge Act, which took away the ability of First Nations people to make cultural heritage claims, was inherently detrimental, and therefore unconstitutional.
However, Chief Justice Brennan and Justice McHugh did not decide whether the Race Power has such a limitation [12]. Instead, they considered the Bridge Act to be an amendment of the The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Justice Gaudron agreed that ‘a plenary power to legislate, carries with it the power to repeal or amend existing laws’[13]; In essence, the law giveth and the law taketh away. Justice Kirby was, unsurprisingly, the sole dissent. He agreed with the appellants that the Race Power does not extend to the enactment of laws detrimental to the people of any race, by reference to their race [14]. Nonetheless, the majority judgement in Kartinyeri permitted the Commonwealth to walk back a statutory protection of Aboriginal and Torres Strait Islander culture.
“old bones bury deep and shallow winds whisper
messages so casuarinas sigh sing and cry reeds
rise from wetlands waiting to be picked and dried and
soaked to weave precious stories of Old Ones while
sand-dunes drift shift everywhere a trace women’s
stories on wind and tide birth-life-death birth all
past-present-future from the body no horizon to the
stars where seven sisters never-end”
On 22 November 1999, over three hundred Ngarrindjeri people and supporters congregated at the construction site of the Hindmarsh Island Bridge [15]. Matt Rigney, an Elder of the Ngarrindjeri nation, declared that the Ngarrindjeri people did not recognise The Bridge Act. He asked that construction be halted and that the title to the land be transferred to the Ngarrindjeri people. He requested that the South Australian Government meet with the Ngarrindjeri leaders and Elders to negotiate a Treaty.
“how sad the people
who refuse to see the signs
from lands waters skies
there is always love I remember my Ngarrindjeri Aunties-
Nannas-Sisters their fight for justice their voices their songs
their knowledge for as long as it takes as long as it
takes for a small island”
Studying Kartinyeri, I had only heard the story of the Hindmarsh Island Bridge through the colonial form of a High Court judgement. Mere words on a page. Words created by the legal system that endeavours to sit on top of, and extinguish, First Nations law. As Harkin explains in the preface to Dirty Words, ‘what is (re)produced and (re)presented for general consumption, by institutions of power, is often steeped in myth-making and persistent colonial ideology’[16].
The bridge to Kumarangk was completed in 2001, after the Hindmarsh Island Royal Commission determined that the First Nations’ claims of ‘secret women’s business’ had been fabricated [17].
While my Commonwealth Constitutional Law class did not shy away from conversations about colonialism, it is the form of colonial law – whether as the casebook, judgements, or a Royal Commission – which are inherently incompatible with how Indigenous voices are elevated. As Hall explains, Harkin’s archival-poetics ‘are focused on reanimating a narrative voice abridged by official silence’ [18]. A silence which I now realise was painfully loud in how Kartinyeri and similar cases have been taught. In this way, Harkin’s desire to ‘speak back to the state’ [19] through poetry, is starting a conversation with the law which is not being reciprocated.
It is possible that without studying Kartinyeri, ‘Kumarangk’ would not have had such an effect on me. It is certain that I did not appreciate the injustice of Kartinyeri, until I heard Harkin read ‘Kumarangk’. For that reason, I believe it is essential that in order to teach legal pluralism, to teach First Nation’s law and history, we must not think only about the colonial content of our studies, but the colonial form. Harkin reminds us that while there is ‘still work to be done’, while there are ‘hidden stories that can be honoured, exposed and shared…there is always poetry’ [20]. Poetry, storytelling, and art, can be taught alongside the casebook. And perhaps, they must be.
‘Ngarrindjeri land
Known by some Hindmarsh Island
always Kumarangk’
Endnotes
1. Elfie Shiosaki, ‘First Nations poets offer a post-referendum path to peace. They invite us to stand together in suffering before moving forward’ The Conversation (Article, 7 August 2024)
2. Natalie Harkin, Archival-Poetics (Vagabond Press, 2019).
3. Natalie Harkin, Dirty Words (Cordite Publishing, 2015).
4. Brenda Saunders, ‘Review of ‘Archival Poetics’ by Natalie Harkin’ Westerly Magazine.
5. Harkin (n 2) 7.
6. Manathunga et al., ‘Decolonisation through Poetry: Building First Nations' Voice and Promoting Truth-Telling’ (2020) 24(1) Education As Change 4.
7. Ibid.
8. Harkin (n 2) 16.
9. (1998) 195 CLR 337.
10. Australian Constitution s 51 (xxvi).
11. Garth Nettheim, ‘The Hindmarsh Bridge Act Case: Kartinyeri v Commonwealth’ (1998) 4(12) Indigenous Law Bulletin 18.
12. Ibid.
13. Kartinyeri (1998) 195 CLR 337, [48].
14. Nettheim (n 10).
15. ‘Kartinyeri v Commonwealth (1998) 195 CLR 337’, Agreements, Treaties and Negotiated Settlements Projects (Database, 9 December 2020) <https://database.atns.net.au/agreement.asp?EntityID=8423> (‘ATNS Database’).
16. Harkin (n 2) 7.
17. ATNS Database (n 14).
18. Matthew Hall, ‘The Site of Memory: Reading Surveillance, Alterity, and South Australia’s Indigenous Archives in Natalie Harkin’ (2018) 12(1) Contemporary Women’s Writing 74.
19. Ibid 70.
Harkin (n 2) Preface.
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