Already an Entity

In 2020 an article appeared in Transnational Environmental Law, a peer-reviewed Cambridge journal. Volume 9, issue 3, pages 541 to 568. Here is the author line, in order:

The Martuwarra is a river in the Kimberley, in the far north-west of Western Australia. Settler maps call it the Fitzroy. It is reported as the first time a river has been the author of an article in a law journal, and it holds a research profile at the Nulungu Research Institute, University of Notre Dame Australia.

The same year, in the journal Challenges, eight authors across four continents published a paper on First Law and planetary health. Attached to the author line is a dagger, and at the foot of the page the dagger reads:

Neither of these is a metaphor, and that is the entire reason this zine exists. They are bibliographic facts. They have DOIs. They are in the indexes, they can be cited in a court filing or a literature review, and a librarian can retrieve them by author.

A river is in the citation record. Something had to make that thinkable, and it was not our law.

This spread is early on purpose. Almost every failure available to a piece like this one is a failure of attribution, and the largest is the sentence Indigenous people believe — which flattens hundreds of distinct legal traditions into a single opinion nobody holds.

Three of those are Aboriginal Australian and from three different nations with three different bodies of law. One is Métis, in what is now Canada, writing about a different problem entirely. They are not interchangeable and they are not a chorus.

The point is made inside the sources themselves. Redvers and colleagues, having spent a paper on First Law, end it by saying that First Law is “uniquely rooted within the respective lands globally” — not one law with local dialects, but many laws, each of which is a fact about a particular place.

Yunkaporta reports a conversation with two Elders. Aunty Mary Graham’s position, as he sets it out, is not that settler law is cruel or badly administered. It is that settler law is incomplete.

She calls First Law a “full Law” by contrast — full because it includes all ethical and moral behaviour, and takes care of every aspect of a complete human being.

Test the charge rather than admiring it. It is a claim about our own statute books, and it is the kind of claim a reader can check in an afternoon. Draining a wetland with a permit. Clearing a remnant forest inside an approval. Discharging within a licensed limit, every day, for thirty years. A catchment that is legally dewatered by the sum of individually lawful extractions, no one of which is an offence.

None of that is a loophole. A loophole is a defect in a law that was trying to prevent something. Our law was not trying. It has no category for the wrong, so there is nothing to be caught by.

Graham’s own 1999 paper opens under an epigraph from Bill Neidjie, a Gaagudju man of Kakadu:

Read that as an observation about instruments rather than a boast. A law that changes constantly is a law being negotiated. The question this zine follows is what our law was never asked to hold in the first place.

Aunty Mary Graham publishes under her own name, in the open. It would have been easy to keep quoting her through Yunkaporta, and it would have been wrong — letting one Aboriginal author be the sole conduit for another’s thought is a version of the same flattening. So: Graham, in Parrhesia, in 2023.

From which follows a self that is not the unit Western ethics assumes. “A reflective self is a communal self,” she writes: one that understands how communal acts affect those around them, human and non-human, over time — rather than being limited to an immediate relation of cause and effect.

And then the formulation she names as both a philosophy and a protest:

What grows out of that relationship she calls a Custodial Ethic: an obligation to look after the Land that nurtures us — “an ethic of looking after, stewardship, caring for, rather than a survivalist ethos with its rivalry and competition over resources and structural conflicts enveloped in hierarchies of power.”

Notice the shape of the disagreement. It is not that our law values the wrong things. It is that our law is built around a self that ends at the skin and a timeframe that ends at the next cause. Ask that instrument to register a two-hundred-year obligation to a river and it has nowhere to write it down.

In Nyikina, a totem is Jadiny. Poelina and Perdrisat write that when Aboriginal people are born they are given one, and that the totem is kin — you are given a totem to teach you that you have a kinship relationship with non-human beings.

To define it they reach for a settler anthropologist, which is worth noticing: Deborah Bird Rose, whose framing they quote is a totem as “a common property institution for long-term ecological management.”

Go to Rose’s chapter and the argument is drier and better than the phrase suggests. She sets out to analyse “a dynamic jurisprudence of duty in which responsibilities and rights are considered together” — and concludes that “totemism appears to constitute just such a jurisprudence of responsibility and right.”

Her list of what that jurisprudence actually does is the part that should embarrass anyone who filed totemism under belief:

Read that as a schedule rather than a cosmology and it is a protected-areas network with enforcement, allocation and standing. Sanctuaries. Species-specific prohibitions. Named parties with the authority to forbid. Obligations that run between groups because no estate can be managed alone.

This is the spread that earns the collection. The relationship with non-human beings is not the decoration on the law. It is the mechanism by which the law is held.

Here is the hinge, and it is Rose’s. The legal doctrine that declared a continent unowned was not, at bottom, a legal argument. It was an ecological one, and it was wrong on its own terms.

The claim was that Aboriginal people did not manage the land. A. P. Elkin, in a book first published in 1938, gave that view what Rose calls “the mark of scientific authority”:

Rose states the inference in one sentence: “The idea that the land was untransformed led directly to the idea that land was unowned.” Behind it sits Locke — whatsoever a man removes out of the state that Nature hath provided, and mixes his labour with, thereby becomes his property. No visible labour, no property. No property, no owners. No owners, terra nullius.

The reversal came in 1969, when Rhys Jones described Aboriginal use of fire as land management and called it fire-stick farming. Rose notes his choice of the word farming was deliberate, and provocative “precisely because it hit a cultural/political nerve”: like farmers, people intervened in their ecosystems to transform them in predictable and desirable ways, for long-term productivity.

So the observation that founded the doctrine was a failure to recognise an institution that was in front of the observers the whole time. The management was there. It did not look like a fence, so it did not count as one.

Hold on to that shape. It happens again on spread ten, to something larger than a continent.

Poelina and Perdrisat open their section of the Challenges paper in Nyikina — Jayida Booroo, yimartuwarra marnins. Welcome to our Country. We are women who belong to the Martuwarra Fitzroy River. They write, in their words, “as Indigenous insiders, mother, and daughter.”

What follows is theirs to publish and ours only to report, so this spread names and does not gloss:

Two things they say about how this law works are worth setting directly against ours. First: “First Law principles are not expressed in terms of external rules, policies, and procedures by government to influence individual and societal behavior through fear.” It is carried in stories, and passed to each generation by singing and dancing.

Second, on obligation: “it is our fiduciary duty to protect land and living waters, and our non-human family.” Fiduciary is a settler-legal word, chosen deliberately. It names the strictest duty our own law knows — the one owed by a trustee, where you may not profit, may not have a conflict, and must act for the other.

Our law has that duty. It has simply never been made to run toward a river.

There is a version of this subject that settler readers enjoy very much, and this zine was originally going to be built on it. Rivers are being granted legal personhood. Look how far we have come.

The statutes are real. The Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 gives the Whanganui in Aotearoa New Zealand “all the rights, powers, duties, and liabilities of a legal person,” exercised by Te Pou Tupua, the human face of the river. In Victoria the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 carries a title in Woiwurrung meaning keep the Yarra alive — and, contrary to how it is usually reported, does not grant personhood at all; it gives the river a voice through the Birrarung Council.

Then you read what the Martuwarra’s custodians actually say about it:

That is the sentence this zine is named after, and it takes the flattering story away. Personhood is settler law conferring, on its own authority and in its own vocabulary, a status the River’s own Law has never once doubted. To celebrate the conferral is to celebrate the gatekeeping.

Poelina’s companion paper with O’Donnell, Pelizzon and Clark puts the objection in its title: “Stop Burying the Lede: The Essential Role of Indigenous Law(s) in Creating Rights of Nature.” The lede being buried is whose law did the work.

The ask is not to be granted standing. It is legal pluralism — that both systems run, and that ours stop presenting itself as the one that decides what exists.

Spread seven left a shape: a European observer fails to recognise an institution, concludes there is nothing there, and the conclusion becomes law. Zoe Todd, a Métis anthropologist, watched it happen again — not to a continent, to the climate.

She was at a Gifford Lecture in 2013, excited, because Bruno Latour was a personal hero and his work was part of why she had left biology for anthropology. He spoke about the climate as a matter of common cosmopolitical concern. And she found herself, in her words, “just another inconvenient Indigenous body in a room full of people excited to hear a white guy talk around themes shared in Indigenous thought without giving Indigenous people credit or a nod.”

Her name for it extends the older doctrine exactly:

The climate, she writes, becomes “a blank commons to be populated by very Euro-Western theories of resilience, the Anthropocene, Actor Network Theory and other ideas that dominate the anthropological and climate change arenas of the moment.” An empty sky, awaiting theory. The land was never empty either.

Todd is scrupulous in a way worth copying. She extends due credit to Latour for the framing. She says plainly that her concern “is not really with Latour himself, but with how a Euro-Western audience consumes” the argument — without knowing that comparable discourses were already running outside the rock-star arenas of Euro-Western thought. She does not think he intended to elide decades of Indigenous intellectual labour.

The charge is not plagiarism. It is a citation practice — and a citation practice is a thing anybody can fix on a Tuesday afternoon.

Todd’s charge is about citation habits in Euro-Western writing about more-than-human worlds. This is Euro-Western writing about more-than-human worlds. It would be indecent to print her argument and not check ourselves against it, so:

We use the phrase “more-than-human” constantly. It is the name of a whole collection here. It is exactly the register Todd is describing — the vocabulary of sentience, agency and multispecies relation that Euro-Western theory arrived at recently and treats as its own discovery.

And No. 26 reaches for Deleuze and Guattari. It takes the rhizome — no trunk, no centre, enter anywhere — from two French philosophers, to argue for decentralised, relational, non-hierarchical ways of knowing. That argument is good and we still hold it. But Todd’s point is not that Deleuze is wrong. It is who else could have told you, and whether they got a line in the bibliography.

The honest version of Todd’s remedy is unglamorous. Read the people whose thought it is. Cite them by name and nation. Notice when your exciting new framework has an older address.

We are not clean here. We are one draft less dirty than we were, on one piece.

Every other zine on this site ends the same way. We take a settled fact, follow it honestly, and find that a claim about belonging — usually about being neurodivergent, usually about us — was already sitting inside it.

That is not happening here, and the absence is the argument.

Run our usual move on First Law and two things happen, both bad. The physics or the statute becomes the validator — First Law is admitted because it agrees with thermodynamics, which makes our instruments the judge of somebody else’s jurisprudence. And Aboriginal Law becomes an instrument for an argument of ours, which is what it looks like when a body of knowledge is used rather than read.

There is a version of the paragraph we are declining to write. It is about how settler law and the deficit model share a shape, both measuring against a standard with no way to record relation. It might even be true. It is also not ours to reach for here, it would travel without its qualifier, and this material has been made to carry other people’s arguments quite enough.

Yunkaporta offers a definition, and we should be measured against it rather than choosing our own:

We do not meet it. Stimpunks is a settler-founded project on stolen land, and Star Stuff is a set of web pages made by people who are not going to become custodians of anywhere by reading about it. That is the plain situation, and stating it costs nothing except a paragraph we would have enjoyed writing.