The Yolngu announced to the court that they wished to perform a short ceremony before the court started in order to ‘welcome’ the judge and the court. This wish was granted. A group of men, followed by women, all wearing white paint on their foreheads, processed into the court chanting loudly and calling out ceremonial names of country to the accompaniment of clapsticks (Fig. 2.3). They bore with them two very large public ceremonial objects representing the ceremonial walking sticks of Yirritja moiety ancestral beings associated with a place within the claim area called Gänganbuy, richly adorned with feather-string (Fig. 2.4). The choice to represent this place and its law was very deliberate. For the Yolngu clans of the Blue Mud Bay area it is the place from which the rom of the Yirritja moiety originates.

Fig 2.3. The opening ceremony: approach to the court

Photo: Courtesy of Sonia Brownhill

In order to accommodate the performance inside the courtroom it was necessary to disrupt the spatial ordering of the native title court by moving aside the tables and chairs facing the judge’s ‘bench’, where the judge sat. The performance in the confined space of the court was visually and aurally extremely powerful—the lawyers and other court officials were displaced to the periphery of the arena. The judge, significantly, was not; he sat at his ‘bench’ throughout the performance, which ended with the ceremonial objects being laid against the bench, and the Yolngu leaving the court. The court space was reconstituted, the ceremonial objects were moved out of the courtroom, and the court then got down to its business. But for a moment, it must have seemed to the non-Yolngu present, as it certainly did to the Yolngu, that rom had momentarily displaced Australian law in its own space.

Fig 2.4. The opening ceremony: in the court

Photo: Courtesy of Sonia Brownhill

The second insertion of a performance of rom took place on the first site visit to the homeland settlement of Yilpara on Blue Mud Bay itself. The Yolngu had chosen this time very carefully, situating it near the beginning of the proceedings, and had been preparing for it for months. The male members of the court were taken to the men’s ceremonial ground (Fig 2.5). Female members of the court, by consent, and including the female counsel for one of the respondent groups, were led to the edge of the ceremonial space, but then were led back (by me under instruction from the ceremonial leaders) to sit with the women in the main settlement while the men went to the restricted ground. As the men returned the women (including the non-Yolngu women) sat with their backs to them, only turning under instruction when the men were close (Fig. 2.6). This was not just a performance of rom in its own ritual space, but an enactment that incorporated the members of the Federal Court as actors, under the terms of rom.

Fig 2.5. The court at the edge of the Yolngu law space

Photo: Courtesy of Daniel Lavery

Fig 2.6. The return from the Yolngu law space

Photo: Courtesy of Daniel Lavery

These two ritual performances could have been admitted as evidence, had the ground to do so been prepared.^[18] But before the welcoming performance, no-one had suggested to counsel for the applicants that it should be regarded as having evidential content. In the case of the performance on the ceremonial ground, there was an issue about procedural fairness, because the other parties had had no opportunity to ask questions, at the time of the performance, about what was happening. The judge was concerned about what an appeal court would make of the event in the absence of a transcript or other recording of it. His decision in the end was to treat it as a ‘view’, ‘to be understood by me as a background or context to understand later evidence’.^[19] He considered it to have been a ‘wonderful experience’,^[20] and went further when counsel for the applicants tried to persuade him that at least the explanatory statements made by one of the witnesses in the ‘restricted session’ could be regarded as evidence:

Although the judge did not then elaborate as to ‘what it was’, the implication was clear. The men’s ceremonial ground—or perhaps the nature of the performance that took place there—was not within the jurisdiction of the Federal Court. Had the Yolngu submitted these performances as evidence, this arguably would have lessened their force, because once situated within the frame of the court as ‘evidence’, they would have been deemed by the court to be performances but not enactments.

These Yolngu performances were deployed in a politics of persuasion, as part of their embedded discourse about sovereignty. Although not evidence, the power of these performances, in their enactment, inevitably became part of the wider context in which their evidence in court was then heard.

The Yolngu were not necessarily fully aware of the court’s distinction between performance as ‘evidence’ and performance as ‘view’, nor of its legal implications. Nor was it relevant to them, in that, to borrow Nancy Williams’ terminology, demonstration is in and of itself explanation, in the Yolngu view. Indeed, the informal space of the ‘view’ is arguably the most effective space for a discourse about sovereignty precisely because it is not subject to the adversarial discourse of cross-examination. Thus the Yolngu had achieved exactly what they had set out to do in their two ritual performances. They had estimated, correctly, that the person whose opinion really mattered was the judge’s, and they had asserted that rom had its own jurisdiction, by enacting it through performance.^[22]

What happens to the discourse about sovereignty when it becomes overt in the context of the court is demonstrated by the following passage from the court transcript—an exchange between the counsel for one of the respondent parties and witness W:

The same question and answer routine was then deployed to extract a ‘no’ answer about clan membership, initiation ceremonies, and correct behaviour with kin, and the passage ended thus:

It is hard to know what counsel for the respondent was trying to achieve here, apart from the undermining of the witness’s confidence, to soften him up for subsequent questions. It was notable that he did not touch on those aspects of ‘Yolngu law’ relevant to native title—aspects relating to permission—until after this exchange. W’s final response is interesting, since it seems at face value to be merely defiant, and to be unsupported by his answers to the previous questions.^[25] It is, however, supported by a deeper logic concerning the nature of sovereignty.

On the second site visit it seemed that the sea itself had decided to make manifest its ancestral forces. In the preceding days it had been like a millpond (Fig. 2.7). Indeed this time of year had been chosen for the hearings because it was usually a time when Mungurru, this named body of deep saltwater, was calm.^[26] But when the court arrived at Blue Mud Bay on the day appointed for the view by boat, it was anything but (Fig. 2.8). The party set off in two big boats and an aluminium dinghy, but once out in the bay, in big seas, it became clear that the view would have to be aborted. The dinghy turned back first. The judge, fortunately, was in the biggest and best protected boat, and he and the witnesses and barristers who were with him suffered only a bit of a buffeting. Those of us in the second boat, pictured in Fig. 2.8, returned somewhat battered, shivering and soaked to the skin.

Fig 2.7. Mungurru on a calm day

Photo: Frances Morphy

Fig 2.8. Mungurru on the day of the ‘view’

Photo: Courtesy of Daniel Lavery

In the boat, at the height of the battering, one of the interpreters had said to me, sotto voce, ‘they won’t forget the name of Mungurru now.’ Later on the same day I heard Yolngu saying to one another that Mungurru had been offended by the presence of so many strangers. At least some of the non-Yolngu who experienced the power of Mungurru on that day were prepared to acknowledge the believability of the belief, or at least to acknowledge the strength of the Yolngu belief. In court the next day, the following exchange took place between one of the respondents’ barristers and the witness who was then in the box:

The Mungurru episode and its interpretation holds the key to understanding W’s final assertion in the passage quoted above, and to the Yolngu insistence on incommensurability discussed below. For the basis of rom, in the Yolngu view, is not something that they as human agents have the power to determine. It is determined—always was and always will be—by the ancestral creator beings of the Yolngu world, and such forces are not something over which humans—any humans—have sovereignty. In that sense then, Euro-Australian law can never have sovereignty over rom, no matter what mundane power relations hold, in a political sense, between the two communities.

Technically speaking, Yolngu are Australian citizens and Australian law is ‘their’ law as much as it is any other Australian’s. But their way of modelling the relationship between the two laws shows clearly that they view the matter rather differently. As one witness put it:

It is not simply that Yolngu value their difference and assert their ‘right’ to be different. From their point of view it is not a matter of choice. They feel themselves to be fundamentally and intrinsically different from ‘white’ people because of their relationship to their country and its ancestral forces. As the same witness put it, succinctly, ‘You stand for power, white people, but we stand for our land and the sea’.^[29]

In the context of the court hearing, Yolngu constantly asserted difference. They pointed out the non-equivalence of concepts, and the problems of translation between the two systems, and in particular they asserted the permanence of rom (as opposed to ‘law’). Here is just one example of several, in which a witness’s evidence is being led by the counsel for the applicants. There are many things going on in this dialogue. One is an assertion of the difference between Yolngu rom and Euro-Australian ‘law’, but there is also, in effect, a debate about the nature of the translation process, in which Yolngu are compelled to use English terms such as ‘law’ when talking about their own institutions:

This insistence on incommensurability might not necessarily have been to the applicants’ advantage in the context of a native title hearing. And it is notable that X introduced it in a dialogue with his own counsel. He was, in effect, restating the Yolngu position as summarised in the introduction. Yolngu rom has been encapsulated by ngapaki law, but it has not been colonised by it. It cannot be—it remains distinct, it is everlasting, and it is incommensurable with ngapaki law. In this witness’s view, stated in another context, so long as Yolngu hold fast to their own rom they will be Yolngu. If they abandon rom, the rom will remain in the country, but Yolngu will no longer be Yolngu—they will just be ‘Aborigines’. Yolngu identity is thus deeply bound to the fundamental underlying principles of governance generated by rom. It is, as they say, the ‘foundation’ of their existence and identity. Native title as a process seeks to impose commensurability between rom and law in order to make the former legible to the latter, and so potentially ‘recognisable’.

Yolngu thus find themselves in a complex double bind. To submit rom to commensurability is in itself impossible in the Yolngu view, whatever the pretensions of the ngapaki native title law. To submit their own conceptualisation of rom to a process of enforced commensurability risks alienation from rom, and from their identity as Yolngu. Yet in resisting commensurability they potentially deny themselves advantages that might accrue from recognition of ‘their’ native title. Their response to this double bind—seeking to maintain a discourse about sovereignty within the dominant discourse of native title—was equally complex.