When I read this week that Tony Abbott and John Howard will hear no talk of a treaty with Aboriginal Australia, my first thought was 'Who listens to these blokes from ancient political history?'
Abbott conceded that it is important to recognise Indigenous Australians were here first, 'But once it goes beyond that I think you open up all sorts of other things.' That is true, and those other things to be opened up are incredibly legally exciting and relevant to our times.
At the moment Native American tribes gather in North Dakota, USA to protest against the construction of an oil pipeline that threatens the Missouri river as well as sacred burial and cultural sites. At the time of writing private security firms had used pepper spray and dogs against protestors, or more correctly named, protectors.
Protectors attempted to stop bulldozers from destroying land on the basis that the Standing Stone tribe was awaiting the outcome of an application in the Federal Court for a legal injunction to cease work. Between 1779 and 1871, the US entered over 500 treaties with Native American tribes, all of which have been broken or nullified.
Meanwhile in New Zealand the Whanganui river is becoming a legitimate legal entity. In a marriage between Maori and Western settler law the river is on the way to being recognised as possessing legal obligations and rights on its own terms.
This legal innovation is a long awaited precedent for those seeking environmental justice across the world. Nature, in the form of a river, can be heard in law based on its own life, needs and rights. River guardians, protectors, are appointed to articulate for the river. The foundation of such legal innovation is in the Treaty of Waitangi and it has been a long, slow and relatively quiet process.
These two legal events, one urgent and confrontational, the other an innovative peace compact between nature and human governance, illustrate the crossroads that environmental law, and law generally, faces in the Anthropocene. And they both focus on recognition of indigenous jurisprudence and the importance of treaties being taken seriously.
Across the world thousands of cases are being heard against perpetrators of environmental pollution and destruction. Concurrently pre-emptive contracts of peace, like the NZ legal form, emerge.
"Instead of viewing a treaty as giving something up, ceding authority or threatening the skeleton of common law, a treaty could gift the Australian legal system with deep principles