Trying to be heard – the voices of first nation People in Herzog’s Where the Green Ants Dream

ABSTRACT

This article examines how speech and speech acts are central to Othering First Nations people in Australia. Werner Herzog’s film, Where the Green Ants Dream (1984), centres around a fictional Dreaming story about green ants, which connect individual ancestral beings with the creation process, as well as forming the basis of First Nation law and culture. The Dreaming story projected in this film is intertwined with a specific nation of First Nations people and their connection and relationship to their Country (land). The film reveals an uneasy relationship between Dreaming and the positive law. In projecting First Nations people’s speech and speech acts within the context of a trial, the film illustrates how the adversarial nature of the law (English common law versus First Nation laws and culture) does not always adequately deal with hard cases. This film manifests the trauma and violence of the white settler state upon First Nations people to illustrate the shortcomings of Australian legality and how the state reckons with the Other.

KEYWORDS:

• First nation people
• dreaming
• Australian film
• legality
• speech
• speech act
• silence
• rule of recognition
• egalitarianism
• Othering

Introduction

Colonial Australia in film is an embellished narrative of liberal progression, which also perpetuates bigotry towards First Nations peoples. The ‘whitewashing’ of Australian history in film has long ignored frontier violence. The complex interplay between racism and aggressive egalitarianism, projected in numerous Australian films, exposes the brutal legality of the settler state.¹

Notably, Australian films from the 1980s began to challenge the Anglocentric social imaginary around First Nations people, and Where the Green Ants Dream² is one such film. The film gives attention to the unjust loss of First Nations’ culture and language, revealing a different aspect of the legacy of settler state legality.³ In manifesting the struggle of First Nation peoples to uphold their cultural responsibility against settler legalities, the film reveals their marginalized position within the settler state. How settler state law is complicit in the loss of First Nations sovereignty, culture and language is examined through the representation of speech, speech acts, and silence.

This article will argue that in Where the Green Ants Dream hard positivist legalities Others First Nations people. The Othering process focuses on how the settler state uses speech acts and silences as a tool of violence against First Nations people. The projection of trauma in the film illustrates the shortcomings of Australian speech legality when confronted with First Nations speech, speech acts and silence. Arranged into three parts, this article will begin with an outline of the film's narrative. Part II will explain what is meant by speech, speech acts and silence. From here, this Part of the article will discuss how the film’s narrative takes inspiration from Australia’s first native title case, the Milrirpum case. This Part of the article reveals points of convergence between the film and the case. In discussing the legal reasoning in Milrirpum, which is largely reflected in the film’s narrative, using Hartian jurisprudence, the film reveals the flaws of Australian legality. Part III will critically discuss how positivism justifies Othering First Nations people to stabilize the interests of the exclusive collective. In approaching this discussion, this part of the article turns to the film’s First Nation protagonists’ speech, speech acts and silences, which are incapable of being heard and accommodated by Australian legalities.

Part I – the mythical dreaming of the green ants

Powerful film narrations about Australian life are shaped by a typology of cultural themes that includes nation-building, aggressive egalitarianism, embodied masculinities, violence and trauma of the settler state, and a reckoning of the Other. Werner Herzog’s 1984 film Where the Green Ants Dream envelops all these cultural themes to tell a disquieting story about inequality, discrimination, loss, and pain First Nations people endure. Destruction and loss are dramatically captured at the film's beginning with a wild sandstorm rolling across Australia’s vast interior lowlands to Gabriel Fauré’s well-known ‘Lullaby of Death’.⁴ Once the intensity of the sandstorm eases and the darkened sky turns blue, a moon-like landscape comes into focus. Under the bright sun, the land reveals its scars from intense mining exploration. Despite a vast area of land damaged, heavy mining equipment and portable buildings in the physical natural environment indicate that there will be further scaring and modifications to the landscape. As the Lullaby of Death gradually fades away and the noise from mining equipment is heard.⁵ Sitting quietly between the heavy equipment are First Nation people. The striking juxtaposition of an ever-present ancient culture against an emphasized Western industrial activity represents how First Nation people are seen occupying and using the land differently.

The distinct low-pitch melodic sound of a didjeridu (didgeridoo) playing the brolga song can be heard over the mining equipment.⁶ The image of a First Nation Elder playing the traditional instrument next to a bulldozer reveals a strong ancestral identity and presence on the site. However, the site is under the supervision of geologist Lance Hackett (Bruce Spence), who works for Ayers Mining Company (Ayers). Lance, in describing the site as ‘Purgatory South’⁷ provides the context to Australia’s historical race relations. Ayers appropriating the land to pursue its fortune represents the Eureka spirit on the colonial frontier. He is overly confident that his exploration will yield positive results for Ayers by discovering uranium.⁸ Promising that there will be ‘champagne in buckets for everyone’,⁹ Lance’s ambition to extract riches from the land through labour reflects Australia’s colonial nation building ambitions. Aspirational economic development makes Purgatory South a colonial space, and therefore, First Nation people’s physical occupation of the land is a mere inconvenience to progress.

While the appearance of First Nation people initially seems to be unproblematic to Ayers’ tenure, Lance’s all-important testing is abruptly halted when a First Nation Elder speaks.¹⁰

Bravely placing themselves close to the blasting site Miliritbi (Wandjuk Marika) tells Lance and site worker Cole (Ray Barrett) in his language – translated by Dayipu (Roy Marika) – that ‘There will be no digging and there will be no blasting. This is the place where the green ants dream’.¹¹ Lance first appears indifferent to what the two elders are trying to say. Determined to keep progress moving forward on the frontier, Lance yells at the two Elders that they must move as ‘we will be blasting again soon. Boom. Boom. Quick. Do you understand?’¹² The Elders, in suspended silence, go on to explain, ‘We are keeping watch, this place’.¹³ Cole is enraged by showing his contempt towards the Elders by screaming, ‘Why the fuck can’t they go and dream somewhere else?’¹⁴ Cole’s outburst represents typical settler ignorance towards First Nation people and their culture and language. Inherent racism in Cole’s attitude throughout the film aligns with the settler's preoccupation with capacity-building opportunities and dominance. The normative presumptions of the settler state to build a nation gives Cole permission to assert his dominance over the First Nation people. Past frontier violence is repeated in the film when Cole is seen driving a bulldozer directly at a group of First Nation people, who are sitting peacefully on the ground, and who are then partly buried by red dirt pushed onto them by the bulldozer.¹⁵ Witnessing the event from his office, Lance runs towards the bulldozer pleading with Cole to stop.¹⁶ Tensions between Cole and Lance reach a new level. Cole angrily walks away from his bulldozer when Lace is seen rendering help to the First Nation people by lifting and pulling them out of the dirt. Apologetic (‘on behalf of Ayers Mining’¹⁷) and embarrassed by Coles’ actions, Lance desperately calls the head office for help.

When the mining company’s executive Baldwin Ferguson (Norman Kaye) visits Purgatory South, he is there to settle the dispute.¹⁸ A swift resolution of the dispute attempted by Ferguson is unsuccessful. Ferguson is inattentive to the Elders’ reasons why exploration has stopped, and thus Lance finds himself in an intermediary position. Attempting to clarify to Ferguson what the Elders had already explained, ‘we mustn’t disturb the dreaming of the green ants. We must not wake the green ants up’.¹⁹ Utterly lost and highly doubtful of Dayipu and Miliritbi’s mythical enigmatic green ants, Ferguson becomes authoritarian in his speech and interaction with the Elders.²⁰ In asserting that Ayers has positive property rights over the land and the right to exploit the land free from the Elders’ interference reflects a traditional conceptual model of understanding land. Ferguson’s righteous explanation is what Jeremy Waldron calls a ‘“settlement” of a system of property’²¹ that affords Ayers stable tenure and exclusivity over the land. Ferguson’s rigid understanding of land puts him at odds with the Elders.

Herzog’s approach to Dreaming and storytelling within First Nation culture mediates the tensions between cultivating the land for economic prosperity and losing traditional culture. With Lance’s testing suspended until the issue is resolved, he tries to understand the story and the significance of green ants but with little success. The green ants dreaming is not the only First Nation mythology unfolding on the land. When Lance visits a supermarket in town, he asks why a group of First Nation men are sitting in the middle of an aisle (next to the detergent).²² The store manager (Bob Ellis) informs Lance that they are sitting on a sacred site where ‘one tree once for miles used to stand, and we put up the shop and cut down the tree … it is where their children are dreamed. First, the fathers are dreaming the children, and the children are born’.²³ Juxtaposing Dreaming with ‘capitalist modernity’²⁴ represents the enduring conflict between First Nations people and the settler state.

Herzog, in drawing attention to this conflict, reveals a visibility as well as an invisibility of First Nations people's storytelling on the Australian landscape. The spatial expression of their culture has been unashamedly silenced and destroyed by the ruthless pursuit of modernization and development. The Elders’ frustration intensifies each time they speak to Ferguson about their different relationship with the land. Inevitably Ferguson and the Elders are in a deadlock.

Eager to break this impasse, Ayers invites Dayipu and Miliritbi to the city to be ‘wined and dined’.²⁵ Despite buying the Elders gifts and showing them how city life depends on Ayers, the Elders remained underwhelmed by Ferguson’s efforts.²⁶ Ayers’ offer of an undisclosed ‘substantial’ amount of compensation that the company explained would give the community in and around Purgatory South a water pumping station and a bus to take the children into town for their schooling,²⁷ was also rejected by the Elders. Once Ferguson accepts that all his efforts to informally resolve the matter with the Elders have been ineffectual, the Elders and Lance are sent back to Purgatory South. Before boarding a private jet, Dayipu notices and shows great interest in a large military aircraft on the tarmac.²⁸ The Elders tell Ferguson they would like the green military aircraft.²⁹ Both Lance and Ferguson, in sharing an expression of surprise, not unlike their reaction to the Elders explaining that their unique relationship with the land rejects their request. Lance explains the practical reasons why it is impossible for a large military aircraft to land at Purgatory South. Once back at Purgatory South, the First Nation people surprise Lance by building a tarmac for their aircraft.³⁰ Following Lance’s inspection he offers to help build a suitable landing strip. Accepting Lance’s offer, the First Nation people watch various Ayers’ employees cultivate the land in preparation for the military aircraft’s arrival.³¹

Without explanation, Ayers delivers the military aircraft to the First Nation people of Purgatory South.³² The excitement shown by all the First Nation people when the military aircraft lands, interjecting a sense of hope against a backdrop of tension.³³ The request for a military aircraft is unusual and is attributable to the film’s strangeness. The green military aircraft for Herzog represents a green ant, and a traditional smoking ceremony within the military aircraft offers the idea that it is a substitute for sacred, traditional land.³⁴

Protecting against First Nation cultural loss for Herzog is a personal issue; his views about this issue are framed around his own ethics. The extinction of the First Nations’ language and culture is a grave concern for the filmmaker.³⁵ Herzog’s ethical message of loss is portrayed and illustrated in the film’s narrative.³⁶ Also, another thread of Herzog’s ethics can be seen in various isolated moments where Lance struggles to deal with how to help the Elders. Lance's benevolence has limitations in a situation, as an employee of Ayers, the company that has the dominant legal status in Purgatory South, also controls the First Nation people on that parcel of land.

With both parties holding firm, the Elders seek assistance from the judiciary.³⁷ The essence of the Elders’ legal argument is for the court to find some new species of right or interest to Purgatory South that emanates from their traditional custom and law.³⁸ The Elders lost the case. Unprepared to reshape how the general law thought about land, the court was not elegant in finding for Ayers. Outrightly dismissing the Elders’ novel legal argument owing to a lack of an authoritative precedent (as discussed further in Part II), the court’s decision reflects a deep loyalty to the settler state’s rules of property. Reaction to the judgment within the courtroom was that of outrage.³⁹ Once the land rights protesters were removed themselves from the courtroom and the anger that consumed the air had evaporated, the Elders were seen sitting in the green aircraft silently.⁴⁰ The sadness on the Elders’ faces is an acknowledgement that they are unable to save their culture, language, and Country.

The final demise of the First Nation culture on Purgatory South occurs when the green military aircraft is taken into the air by Watson (Gary Williams), who represents an Australian larrikin.⁴¹ Always with a large bottle of Fosters beer in his hand and always singing ‘My baby does the hanky panky’, Watson boasts that he can fly the aircraft.⁴² When challenged by an unnamed First Nation woman to do so, he stumbles into the cockpit of the military aircraft.⁴³ Watson sits next to Dayipu, already in the aircraft, nursing the knowledge that his culture is forever lost. Watson starts the military aircraft and it taxies across Purgatory South.⁴⁴ The aircraft is then seen taking off heading East; we are told that Watson and Dayipu are going to the ‘special area where the green ants disappeared and never come back’.⁴⁵ There is panic on the ground, leading Lance to quickly organize a rescue mission.⁴⁶ The mission is quickly abandoned when Elders from the mountains confirm the news to Lance that the military aircraft has been found with no survivors.⁴⁷ The fatality of the last keeper of the dreams and the myth of the green ants dreaming comes to a sad end.

The film brings critical attention to First Nations’ loss. Loss of Country, culture, language, and life. Herzog’s manifestation of this loss reveals a disturbing truth about Australia as a colonial project. Dispossessing First Nations people of their Country rested on ‘the hypothesis that there was no local law already in existence in the territory and the indigenous inhabitants of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organisation’.⁴⁸ The legal presumption of this initial hypothesis pretended that the acquisition of sovereignty automatically vested in the Crown peacefully. From the moment this fiction was created, Australian legality justified the settler state's coercive control of First Nations people.⁴⁹ The enduring realities of injustice and trauma for First Nations peoples are due to this doctrinal falsehood.

The film’s insight into the trauma of loss experienced by First Nations people and substantive injustice is a story set against the backdrop of social change in Australia during the 1960s and 1970s. During this time, First Nations peoples were fighting against enduring the misbelief of being seen as ‘backwards’ under the legal doctrine of terra nullius.⁵⁰ The Elders represent the challenge First Nations people face in bringing their truth, which would displace how Australia understood its colonial situation. Defiant in fighting for their culture, the Elders seek to reform Australia’s common law. Their struggle against the backward legal presumption, the film illustrates the rhetorical power of speech, speech acts, and silence are powerful forces that exclude those who may attempt to challenge the will of the imagined collective.

Part II – judicial relations for first nation: an exceptional circumstance in Australian speech legality

Proud Tanganekald legal scholar Irene Watson argues that First Nation people’s speech was erased from political and public discussions.⁵¹ The film shows how the law treats the Elders’ speech and speech acts as defective. Although the film presents a rather underwhelming courtroom drama, it draws attention to how discourses of imperialism and power underpin Australia’s legal system and its common law. As Robert Williams observes Australia’s common law has been the ‘perfect instrument of the empire’⁵² to justify imposing strict legal formalism on First Nations people. Unprotected and treated as a lesser jural species,⁵³ their speech and speech acts could not effectively assert their story in a way that Australian common law could hear and understand.

The real and the imagined of Australian speech legality

Akin to Herzog’s other filmic works, Where the Green Ants Dream offers a complicated discourse of colonialism located in Australia’s settler state. When the ‘international auteur’⁵⁴ first visited Australia in 1973 for the Perth Film Festival, the filmmaker recounts that he came across an article about the Milirrpum case.⁵⁵ Herzog’s controversial film takes inspiration from Australia’s first native title test case, Milirrpum v Nabalco Pty Ltd.⁵⁶ The outcome of this 1971 case (21 years before Mabo⁵⁷) was that there was no clear precedent to overturn terra nullis. The Northern Territory’s Supreme Court’s reluctance to make new law was met with an outcry from some sectors of the Australian public.⁵⁸

All hope and expectation on the Milirrpum case to give First Nation people ‘better times’⁵⁹ were brutally dashed. Yet, the disturbing truth of the Milirrpum decision is that First Nations people’s laws, customs and culture are often underemphasized. The film’s depiction of the Milirrpum case contextualizes the settler state’s power through legal formality. In re-creating the spectacle of the trial, the film’s ostensible criticism of Australia’s aggressive egalitarianism melds the real with the imaginary to lay bare the anguish around First Nation speech and speech acts struggling to be heard against institutional aggression. The film gives First Nations people a voice, yet it shows that in verbalizing their agency, their speech acts were powerless and muffled against the common language games of Australian legality.

Objectified representations of First Nations peoples, either in film or through the common law, had Othered them into a position of marginalization. Herzog’s film attempted to provoke viewers to think differently about First Nation people and their culture in the settler–First Nation relationship. The film’s narrative is arranged around mythology, dispossession, and loss, which offer points of convergence between the film and the Milirrpum case.

Herzog’s portrayal of the Milirrpum case highlights the formative legal argument of the Yolngu people challenging the terra nullius doctrine before the Northern Territory Supreme Court. The Yolngu people argued that Australian common law recognized communal title in the claimed land (the Gove Peninsula in East Arnhem Land).⁶⁰ Blackburn J rejected this argument by finding that the Yolngu people did not have a customary proprietary interest in the land. The crucial aspect to Blackburn J’s reasoning is the finding that English law applied to the colonies of Australia from the moment of English settlement at Sydney Cove (now Circular Quay). Thus, the Crown held beneficial and radical title to all unalienated land.⁶¹ In making this finding, Blackburn J concluded that there was no communal native title in Australian and English common law owing to the Crown being the possessor of ‘waste land’.⁶² He further qualified this finding by stating that he was bound to follow earlier High Court cases.⁶³ However, whilst it is arguable that it was open to Blackburn J to deviate from the established law, his reluctance to do so turned on how he characterized proprietary interests.⁶⁴ Here the emphasis on the individualized and exclusionary nature of property is grounded in the historical origins of English common law.⁶⁵ Understanding and structuring land tenure property in this way conferred on the settler state the power to supersede a different proprietary interest. In rebuffing the Yolngu people’s own system of customary law, social rules, and customs, Blackburn J asserted that the differences between the two systems were too significant to reconcile.⁶⁶

Herzog’s critical and reflective attitude towards Australian culture and legality questions why there is such a commitment to uphold laws that are exclusionary. Blackburn J’s preoccupation with framing his decision around ‘good law’ or precedent reveals how positivism resolves an issue exclusively in terms of rules. In offering a snapshot of the imposing adversarial nature of Australia’s common law system, Where the Green Ants Dream warns that it is a mistake to think of law only as commanding rules.⁶⁷ The film illustrates how the legal positivist mandate crudely disempowers the speech of First Nations peoples. Blackburn J’s articulation that the English common law applies to a settled territory carries a presumption of efficacy about Australia’s system of governance.⁶⁸ This presumption manifests a duty on judges to impose and uphold a system of colonial laws and rules that ensures Australian legalities fit within a more prominent and imposing system of laws. Blackburn J’s utterances as an official show a commitment to uphold the English common law.

In this way, Australian legality as an unfolding system of rules predicated on a power conferring norm subscribes to an overarching rule of recognition, as articulated by HLA Hart.⁶⁹ Corresponding to Hart’s rule of recognition, Blackburn J is obedient and consistent. He upholds primary norms and confers authority on the settler state to resolve any uncertainty concerning Crown title. Such norms are, as Herzog points out, a matter of morals and ethics.⁷⁰ Denial and loss of First Nation land rights and culture are seen as necessary aspects of the functioning of secondary norms for the settler state to operate.⁷¹ Blackburn J’s reluctance to change or modify the rules to establish land rights for First Nation people highlights the failings of a legal system to provide justice. The film’s examination of justice from a marginalized position questions why these norms within the Australian legal system must be so dogmatic.

According to Hart’s rule of recognition, Blackburn J had a duty to follow and apply the doctrine of terra nullius.⁷² However, for Hart, the law should not be confided by or understood to merely follow a duty, as the law will show its incompleteness in hard cases.⁷³ For Hart his rule of recognition provides open texture that will overcome such limitations.⁷⁴ As Hart asserts, the open texture of language is a feature of all legal rules.⁷⁵ Hart points out that the open texture of the law allows a judge to make ‘a fresh choice between open alternatives’⁷⁶ in thinking about and creating rules.⁷⁷ When Blackburn J was confronted with a hard or elusive case, as portrayed in Where the Green Ants Dream, the film outlines the competing interests, at the same time warning that a choice in favour of the mining company would be wrong.⁷⁸ Hart then argues that in harder cases, a judge will choose whatever satisfies a determinative initial aim.⁷⁹ The settler state’s nation building agenda, which pervades Australian culture, is also an inescapable aim reinforced in the film. One of the film’s peripheral characters, Arnold (Nick Lathouris), testifies to the court, ‘Here, you talk about progress over and over, and over again, and where does it leave the Aborigine? It is progress into nothingness’.⁸⁰ Progress versus cultural extinction as a representation of an elusive case is tied to the core of the settler state.⁸¹ The resolution of such cases by a legal system, as Hart points out, will either ignore or acknowledge a need to further develop the exercise of choice in applying the rules.⁸² The choice had significance for the inclusion of First Nation usufructuary rights in Australia’s legal system. Hart’s view about choice is subject to a set of rules that serves (in practice) legislation.⁸³ How the legal system was to formally accommodate First Nation differences was difficult yet a simple determination. In the absence of clear legislation or any other written rule as far as the legality of sovereignty is concerned, extinguishing First Nation laws and Country by following the legal fiction of terra nullis – is an easy choice and decision to make. The difficulties, of course, were not for the legal system but for Miliritbi and the First Nation plaintiffs in Milirrpum to prove their title.⁸⁴ In highlighting Miliritbi’s challenges, the film draws attention to the settler state's unwillingness to accommodate.

There are moments when a legal system will be asked to sacrifice its coercive legal rule and make changes to ‘hard cases’. Hart points out that the dissimilarities in legal systems can be seen in how different social needs are weighed and appreciated in order to bring about change.⁸⁵ Changes to the land tenure rules for First Nation people were a protracted struggle – and one that is not necessarily over.⁸⁶ Milirrpum presented the Australian legal system and the settler state with an important cultural and socio-legal issue to create new rules. Yet, legal reform was not possible. Drawing from Milirrpum, the film’s narrative presents a truthful description of how the legal system’s commitment to following the settler state’s commands is misguided. Loyalty to upholding the terra nullis fiction manifests the rigidity of Australia’s legal system. Othering First Nation people by way of this legal fiction, the film critically questions how the law could not help Miliritbi when the common law is required to reverse precedent. In showing how the common law inverted Miliritbi’s culture to render it meaningless, the film sympathizes with the enduring struggles of First Nation peoples in general.

The universal neutrality of legal formalism, which Australian institutions proclaim to embody, is a ‘possessive logic of patriarchal white sovereignty’.⁸⁷ Australian legality in extinguishing First Nation sovereignty is entangled in the interests of the settler state’s pursuit of modernity that reaffirms the settler state’s dominion and control.⁸⁸ In speaking predominantly to the egalitarian myth, the settler state accommodates a sovereign authority that is unable to include differences. As the film illustrates, this difference exacerbates the settler state’s anxiety. Whenever the practical differences of the Other challenge institutions, the settler state and its legal system ritually fortify their homogeneity through an array of marginalizing practices. By the start of the 1980s, there was a change in the terrain in land rights activism. The issue was reshaped to be one of legality – later to be resolved as a defining part of how First Nation people spoke in opposition to the settler state’s repression.

This new direction meant that efforts to transcend the cultural practice of disempowering First Nation speech now became a legal struggle. At the heart of this struggle were efforts to link legal doctrine with the expressive and distinct spiritual narratives – storytelling – that connected First Nation people to their Country. However, the idiom and forms of storytelling through speech and speech acts (that are nonlinear and consist of fractured sentences and expressions)⁸⁹ and silence is sharply at odds with the structured formalities of the settler state’s legal text, which has meant their speech is marginalized and muffled. Notwithstanding this, active government rhetoric to progress First Nation land rights and the concept of self-determination by way of a treaty during the 1980s to affirm First Nation culture and law caused hostility within the Australian community.⁹⁰ Racial inequality and bigotry against them were perpetuated through the discourse enunciated in the film.

Part III – Dayipu’s and Miliritbi’s speech and speech acts

The pain felt by Dayipu and Miliritbi, who were unable to stop the extinguishment of their culture, are played out under a legal system, which seeks to affirm a unity of all people in one system.⁹¹ Miliritbi’s case represented a hard case that questioned the settler state’s enduring power to uphold the meaning and scope of the collective. The film, in animating Miliritbi’s frustration within a courtroom setting, choreographs those moments when the law has the capacity to shift in response to a different view of land rights. The law’s plenary power may give the appearance of being capable of change. As Hart points out, hard cases can always be determined because the court’s solution has a footing in existing law.⁹² The majestic qualities of Miliritbi’s Dreaming have no footing in positive law. The external dimensions of First Nation laws compared to positive law is best explained by Irene Watson:

– the Dreaming, the place of lawfulness, a time before, a time now, and a time we are coming, always coming to. A time when the first songs were sung, as they sung the law. Laws were birthed as were the ancestors – out of the land and the songs and stories recording our beginnings and birth connections to homelands and territories now known as Australia.⁹³

Miliritbi’s Dreaming tells a story of lawfulness that is woven into Country (Purgatory South). Such a vibrant activity, shaped by Country, upholds a different system of law and sovereignty that goes beyond the internal rules of a positive legal system. As the film shows, the division between positive law and Dreamtime is too wide. In manifesting the troubles First Nation people have in unifying their laws and culture through speech and speech acts to a homogenous power, the film draws attention to the positive law as incapable of accommodating difference.

All the First Nation protagonists in the film are semiotic interlopers within the legal system whereby their unique linguistic and non-linguistic communication is out of place within Australian legality. Miliritbi and the others, who cannot confine their speech and speech acts to a white patriarchal ideal of speech throughout the film, impedes Hart’s resolute view that a legal system is capable of reform through the flexibility of ‘our language’.⁹⁴ The film highlights that the positive law and judicial practices have failed to attend to Miliritbi’s speech, speech acts and silence. For Miliritbi’s culture to survive, everything turns on how well his speech acts can explain the need for Dreaming culture and law to be acknowledged, understood, and granted positive legal protection. The difficulty faced by Miliritbi and Dayipu was that their utterances were contained within a broader context of the settler state’s economic utopia. The film describes how Australian culture has largely ignored the fact that it has a race issue. It challenges how Australia has optimistically viewed itself as a ‘lucky country’ by showing the ugliness of these liberal ideals. Herzog, in advocating what the law ought to be, moves away from delivering a perfect filmic narrative of justice. Instead, by aligning a sad narrative to Australia’s nation building ambitions, he poses the question: When will Australia stop destroying its own ancient culture and heritage? The simple answer offered by the film is that there is no end to exploiting the land because such activities are at the very core of the settler state.

The legal architecture that supports the settler state and its legalities quickly dismiss Milirtibi’s and Dayipu’s intense feelings of peril. Subjectivity has little relevance within the screened hard legalities. As the mining company’s Executive Vice President, Ferguson, explains: ‘The area does not bear the official status of a reservation. All of us, and that includes you, are subject to the binding scriptures of the Land Rights Act of the Commonwealth of Australia’.⁹⁵ Ferguson's explanation that the positive law’s validity derived from the scriptures holds good, but good for whom? By Miliritbi demanding to know ‘What is this Land Rights Act?’, he is telling Ferguson the social facts in his broken speech that:

We have been here for 40,000 years. Longer than you cames. If you are going to mining of this land. You are going to destroy the land; the green ants and the green ants will come out and dig a hole in this world.⁹⁶

This exchange between Ferguson, Dayipu and Miliritbi animates the ‘us’ and ‘them’ divide in Australia’s constitutional character and culture.

The stark demarcation of ‘us’ and ‘them’, as seen in the film, reveals how First Nations people continually found themselves in a position where they were required to negotiate their way in and around the intrusion of the settler state. The dominance of the settler state obstructed the relationship they had with Country.⁹⁷ Important to the establishment of the settler state was dismantling First Nation sovereignty. Although First Nation sovereignty, as a political and legal phrase, is relatively new, arising out of the land rights discourse of the 1960s, the concept is predicated on the European notion that Aboriginal peoples owned and occupied the land prior to the formation of the settler state.⁹⁸ As Irene Watson argues, when the settler state was formed, it imposed itself on Country and people through violence.⁹⁹ The settler state has long used foundational violence to justify its right to claim land. Implicit in the settler state’s claim of possession is that First Nation people were perceived through a ‘skeletal framework of white versions of history and legality’.¹⁰⁰ The legal fiction of terra nullius provided the necessary justification for the setter state to disregard First Nation sovereignty. Terra nullius has long been perpetuated through the settler state’s narrative, shaping malevolent perceptions about First Nation sovereignty. In challenging this settler state narrative, Herzog focuses on articulating First Nation sovereignty in Dayipu and Miliritbi’s speech and speech acts.

Through Herzog’s fictitious Dreaming narrative, he positions First Nation sovereignty in the speech and speech acts of Miliritbi, and Dayipu highlights the parochialism of the settler state. Difference is challenging for the settler state because it perceives First Nation culture and language as a threat to homogeneity within Australian society. Consequently, a First Nation point of view is generally treated as irrelevant. Herzog’s decision to have the First Nation protagonists speak in their language throughout the film represents how First Nation speech and speech acts are a semiotic interloper within Australian society. Milirtibi’s evidence to the court goes some way to show how the settler state uncomfortably accommodates First Nation speech and speech acts:

We have come to tell you about the land. So, the court can recognise the land that we are living on. The mining company coming and hurting the earth and doing all this to the land. That men. They destroy the people. That mining company come and destroy the land and the feeling of the people, and for the dream, the green ants dreaming. If you are going to destroy the land, which is sacred land, a special area, a dreaming land for green ants if you are going to drill. You are going to destroy the people, the green ants and they will never come back again.¹⁰¹

The Solicitor General (Ray Marshall) is outraged by Miliritbi’s evidence. Illustrated in the Solicitor General’s response is a prejudicial tone that reveals the deeply troubled way the settler state reckons with the Other.

The film reveals how applying the settler state’s criteria to Dayipu’s and Miliritbi’s speech exploits the differences in their speech acts and their cultural beliefs and customs. Strict adherence to legal formalism by the Solicitor General in the film provides the necessary ignorance to evoke insecurity and fear in the First Nation speech and speech acts. In aggravating the ‘ignorant suspicion’¹⁰² of the Other, the Solicitor General becomes increasingly animated throughout the trial over Dayipu’s and Miliritbi’s speech acts. Demanding that ‘Counsel for the plaintiff explain what is meant by [making a sweeping arm gesture across his body] … can you translate this into English?’¹⁰³ and in attacking the vagueness of Dayipu’s speech when he answered, ‘of a little, long way’ to the question of ‘the exact expanse of the tribal territory’¹⁰⁴ manifests a crude animosity towards First Nation people. The dominant push to stifle Dayipu’s speech is seen when the Solicitor General calls for Dayipu’s evidence to be struck out by declaring ‘evidence of this order … is hearsay’, and therefore inadmissible.¹⁰⁵ The motivation behind the Solicitor General’s argument is clear – if it cannot be understood, it must be inadmissible. Herzog’s meditates here on the settler state failing to understand and consider the First Nation perspective, which makes the struggle to dislodge the illusions of being ‘uncivilised’ extremely hard.

The prevalence and persistence of dismissing First Nation speech in this way is humiliating and disrespectful. It is a form of settler state violence. The Solicitor General, Cole and Ferguson, in attacking the speech, speech acts, and the silences of Dayipu and Miliritbi, correspond to Australia’s historical narrative of excluding the Other to strengthen a cohesive modern society. In questioning why, the settler state is obsessed by achieving a cohesive society, the film urges us not to see Miliritbi’s legitimate claim as a hard case. Instead, the film projects that his case provides a moment to produce legal change that could shift the English positive law to include First Nation laws and customs. The film highlights how the positive law easily dismisses Miliritbi as a hard case and affirms one system of colonial governance. Articulating and applying rules predictably imposes a barrier to achieving an understanding of Milirtibi’s traditional laws. Herzog incorporates into the film’s narrative the ruling of the Privy Council of 1916 in the case of Angu v Attah¹⁰⁶ to illustrate that African customary law can be legally recognized and understood.¹⁰⁷ The film, manifesting the deficiency of the positive law and the settler state to sanction Milirtibi’s system of laws and customs, shows the ongoing trauma and loss experienced by First Nation peoples.

The attacks on Dayipu’s and Miliritbi’s speech and speech acts projected throughout the film suggest Ludwig Wittgenstein’s claim that when ‘we do not understand the people … We cannot find our feet with them’.¹⁰⁸ Positive law, and the settler state have narrow horizons. The impossibility of not reckoning with the Other is seen when Malila (Dhungula Marika) unexpectedly takes to the witness box and speaks in his own language. The court quickly reminds Malia that he was not called to the stand and asks Mr Miliritbi to make this clear to Malia.¹⁰⁹ Miliritbi informs the court that he is unable to assist because he does not speak Malilia’s language, which highlights how the settler state overlooks the diversity in First Nation culture. When Malila is described as a mute by the court, Miliritbi explains that he is a mute because he has cultural responsibility for his Country and custom and these are dying out¹¹⁰ owing to the violence and trauma emanating from the settler state. Malila is ‘called the mute because there is nobody left on this earth for him to speak with’.¹¹¹ In this one brief scene, the film manifests the brutality of the settler state’s violence on First Nation culture.

The film is suggesting that by ignoring the rich depth and heterogeneous nature of First Nation culture and laws, positive law of the settler state has a long way to go to be open to understanding the Other. The crude and long reach of colonialism is espoused through the systematic speech attacks on First Nation people in the film. Cole’s interactions with the First Nation peoples at Purgatory South consist of bigoted outbursts such as, ‘Fucking, dirty, bludging Bongs, all they are good for is getting drunk’.¹¹² Portraying First Nations people as unequal, Herzog attempts to disturb Australian ignorance about them. When Dayipu sings over the chief at the Greek restaurant with a happy song in thanks for giving him food and drink, Lance and the others in the restaurant are surprised.¹¹³ Herzog reveals how Australia is open to newer cultures that are embraced and understood above First Nation culture. Failure by the settler state to see and appreciate First Nation cultural differences is articulated in Herzog’s film to reveal how the settler state has largely ignored the fundamental trauma experienced by First Nation people when their language and culture are lost. Treating First Nation culture as the Other highlights how the positive law and the settler state can only comprehend differences through the egalitarian narrative.

Framing First Nation sovereignty as a trespasser and wrongdoer reveals an aggressive claim to ownership. Dismissing Miliritbi’s legitimate claim to his Country through his Dreaming story reveals that the centralized power of the settler state will always ride rough shod over the cultural complexities of First Nation traditions. The film critiques Australia’s stern egalitarian approach. Ferguson attempts to explain that what the mining company ‘takes out of the ground is meant for everyone. There is electricity for light, heat, refrigeration, and anything you want’.¹¹⁴ The notable tension in Miliritbi’s and Dayipu’s silence to Ferguson evokes sadness about their culture’s inevitable demise. The arbitrary exclusion of First Nation sovereignty within the settler state’s narrative represents an insurmountable barrier for Miliritbi and Dayipu. Herzog is sceptical about the choice of economics over preserving First Nation cultural heritage and culture. In sympathizing with Miliritbi trauma over losing his language and Country, the film questions the settler state’s choice to govern First Nation people through the myth of egalitarianism.

Conclusion

This article has highlighted the struggle of First Nations peoples to uphold their cultural responsibility against settler legalities and has revealed their marginalized position in the settler state. Where the Green Ants Dream urges the rules to be modified for Miliritbi and Dayipu, but justice is not forthcoming, thus the film draws attention to how Australian legality is ‘a mythical promise of equality’.¹¹⁵ The juridical account presented in the film confirms how the settler state law is blindly complicit in the loss of First Nation sovereignty.

The prevailing representation of First Nation sovereignty in Milirtibi’s and Dayipu’s speech, speech acts and silence draws attention to how the settler state struggles to reckon with the Other. The article reveals how the positive law, in treating Milirtibi and Dayipa’s speech and speech acts as semiotic interlopers, crudely and traumatically disempowers them as a people. The affirming power of the settler state over the Other is articulated in the film through a single legal order. In this sense, the mining company stoically defends Australia’s collective and homogenic life.

Acknowledgements

The author would like to thank Professor Kieran Tranter from Queensland University of Technology for his feedback on earlier drafts and the Law, Literature and Humanities Association of Australasia for the opportunity to present my thoughts on this topic. I would like to also thank the reviewers for their valuable feedback.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 Kim D Weinert, Kieran Tranter and Karen Crawley, ‘Australian Lenses on Law, Lawyers and Justice’ in Kim D Weinert, Kieran Tranter and Karen Crawley (eds), Lawyers and Justice: Through Australian Lenses (Routledge 2020) 3.

2 (Lucki Stipetic, 1984).

3 Weinert (n 1) 4.

4 Requiem, Op 48 (1887)–(1890); Green Ants 0:23–1:42.

5 Green Ants 1:43–2:05.

6 Green Ants 2:06–3:40.

7 Green Ants 10:45

8 ibid.

9 Green Ants 10:40.

10 Green Ants 11.30.

11 Green Ants 12:19–12:35.

12 Green Ants 8:41–8:49.

13 Green Ants 9:14.

14 Green Ants 12:42–12:44.

15 Green Ants 13:27–14:45. The imagery of past violence earned Herzog criticism and was labelled as disrespectful by some First Nation leaders. Andrew Hurley, ‘Whose Dreaming? Intercultural Appropriation, Representations of Aboriginality, and the Process of Film-Making in Werner Herzog’s Where the Green Ants Dream (1983)’ (2007) 1(2) Studies in Australasian Cinema 175, 183–84.

16 Green Ants 14:41.

17 Green Ants 15:33.

18 Green Ants 16:14.

19 Green Ants 17:28–17:32.

20 Green Ants 19:09.

21 Jeremy Waldron, The Right to Private Property (Claredon 1988) 239.

22 Green Ants 28:13.

23 Green Ants 28:19–28:46.

24 Ulrich Oslender, ‘Decolonizing Cartography and Ontological Conflict: Counter-Mapping in Colombia and “Cartographies Otherwise”’ (2021) 89 Political Geography 1, 8.

25 Green Ants 37:46.

26 Green Ants 38:15–38:59.

27 Green Ants 22:22.

28 Green Ants 42:58–43:10.

29 Green Ants 44:13.

30 Green Ants 46:11.

31 Green Ants 48:06–49:35.

32 Green Ants 55:44.

33 Green Ants 56:11.

34 Green Ants 59:14–59:31.

35 Green Ants Extra, Director’s Commentary 19:54.

36 Thomas Elsaesser, ‘An Anthropologist’s Eye: Where the Green Ants Dream’ in Timothy Corrigan (ed), The Films of Werner Herzog – Between Mirage & History (Methuen 1986) 151.

37 Green Ants 1:01:18.

38 Green Ants 1:02:50.

39 Green Ants 1:17:18.

40 Green Ants 1:17:48–1:18:13.

41 A larrikin is a person best known for being mischievous, uncultivated and a rowdy person. Sandra Hall, Critical Business: The New Australian Cinema in Review (Rigby 1985) 3.

42 Green Ants 1:20:48.

43 Green Ants 1:21:19.

44 Green Ants 1:22:30–1:23:33.

45 Green Ants 1:16:06.

46 Green Ants 1:24:46.

47 Green Ants 1:25:35–1:25:58.

48 Mabo v Queensland [No 2] (1992) 175 CLR 1, 36 (Brennan J) (Mabo).

49 See Yanner v Eaton (1999) 201 CLR 351 (Gleeson CJ, Gaudron, Kirby and Hayne JJ) [17].

50 See Mabo (Brennan J), 58. His Honour was citing Cooper v Stuart (1889) 14 App Cas 286.

51 Thalia Anthony and Juanita Sherwood, ‘Post-Disciplinary Responses to Positivism’s Punitiveness’ (2018) 3(1) Journal of Global Indigeneity 1 <https://ro.uow.edu.au/cgi/viewcontent.cgi?article=1046&context=jgi>.

52 Robert Williams, The American Indian in Western Legal Thought – The Discourse of Conquest (Oxford University Press 1990) 8.

53 Daniel Lavery, ‘No Decorous Veil: The Continuing Reliance on an Enlarged Terra Nullius Notion in Mabo [No 2]’ (2019) 43(1) MULR 233, 247.

54 Phillip Adams, ‘The Wrath of Herzog’ The Australian (Sydney, 11 June 2011) <https://www.theaustralian.com.au/life/columnists/the-wrath-of-herzog/news-story/b7abbb95af8fc77c79bcea10fea9c97f> accessed 11 June 2020; Thomas Elsaesser, ‘An Anthropologist’s Eye: Where the Green Ants Dream’ in Timothy Corrigan (ed), The Films of Werner Herzog – Between Mirage & History (Methuen 1986) 139. The arthouse film Aguirre, the Wrath of God (1972) earnt Herzog international acclaim for its ‘unremitting and overwhelming vision’. Stuart Jeffries, ‘Aguirre, Wrath of God: No 11 Best Arthouse Films of All Time’ The Guardian (Melbourne 20 October 2010) <https://www.theguardian.com/film/2010/oct/20/aguirre-wrath-herzog-arthouse> accessed 13 February 2022. Two years later, The Enigma of Kaspar Hauser (1974) won Herzog the Jury Grand Prize at Cannes. Brad Prager, ‘Werner Herzog’ Oxford Bibliographies (2017–2018)<https://www.oxfordbibliographies.com/news/2017/September?t:state:client> accessed 5 May 2019.

55 Milirrup v Nablco Pty Ltd (1971) 17 FLR 141 (the Milirrpum case).

56 ibid. This case attempted to recognize the Yolngu clan’s tenure in land.

57 Mabo v Queensland (No 2) (1992) 175 CLR 1.

58 Nancy M Williams, ‘Stanner, Milirrpum, and the Woodward Royal Commission’ in Melinda Hinkson and Jeremh Beckett (eds), An Appreciation of Difference: WEH Stanner – Anthropology and Aboriginal Australia (Aboriginal Studies Press 2008) 207.

59 John Fogarty and Jacinta Dwyer, The First Aboriginal Land Rights Case More or Less, 191 <http://www.futureleaders.com.au/book_chapters/pdf/More-or-Less/John-Fogarty_Jacinta-Dwyer.pdf> accessed 20 June 2020.

60 Daniel Lavery, ‘“Not Purely of Law” – The Doctrine of Backward Peoples in Milirrpum’ (2017) 23 JCULR 53, 54–55.

61 The Milirrpum Case, 244; Robert Van Krieken, ‘From Milirrpum to Mabo: The High Court, Terra Nullius and Moral Entrepreneurship’ (2000) 23(1) UNSWLJ 63, 67.

62 Milirrpum 246–47.

63 Williams v Attorney-General for New South Wales (1913) 16 CLR 404; Council of the Municipality of Randwick v Rutledge and Others (1959) 102 CLR 54.

64 Robert Van Krieken (n 61) 67.

65 William Blackstone, Commentaries on the Laws of England (The Legal Classic Library, 1765) Book 2.

66 Barbara Hocking, ‘Aboriginal Law Does Now Run in Australia – Reflections on the Mabo Case: From Cooper v Stuart Through Milirrpum to Mabo’ (1993) 15(2) Syd LR 187, 191.

67 Leo Zaibert, ‘Rules, Games, and the Axiological Foundations of (International) Criminal Law’ (2016) 16 Int CLR 346, 349.

68 Matthew Kramer, HLA Hart: The Nature of Law (Polity Press 2018) 68–69.

69 HLA Hart, The Concept of Law (2nd edn, OUP 994).

70 Timothy Corrigan, ‘Producing Herzog: From a Body of Images’ in Timothy Corrigan (ed), The Films of Werner Herzog – Between Mirage & History (Methuen 1986) 3. See also Antony Fredriksson, ‘The Art in Documentary Film and Werner Herzog’ (2018) 22(1) Film Philosophy 60.

71 Matthew Kramer (n 68) 75.

72 Grant Lamond, ‘The Rule of Recognition and the Foundations of a Legal System’ in Luis Duarte D’Almeida and others (eds), Reading HLA Hart’s The Concept of Law (Hart Publishing 2013) 115.

73 Hart (n 69) 251–52.

74 ibid 252.

75 Frederick Schauer, ‘On the Open Texture of Law’ (2013) 87 Grazer Philosophische Studien 197, 201.

76 Hart (n 69) 128.

77 Brian Bix, ‘HLA Hart and the “Open Texture” of Language’ (1991) 10(1) Law & Phil 51, 66.

78 Hart (n 69) 129.

79 ibid 126, 129.

80 Green Ants 1:07:03–1:07:9.

81 Kim D Weinert and Kieran Tranter, ‘The Empty Centre: The Hallowmen and Representations of Techno-Political Elites in Australian Public Life’ (2020) 18 (11) ESLJ 1.

82 Hart (n 69) 129.

83 ibid 129–30.

84 Milirrpum 272.

85 Hart (n 69) 130.

86 See, for example, Ward v Western Australia (1999) 159 ALR 483.

87 Aileen Moreton-Robinson, The White Possessive: Property, Power, and Indigenous Sovereignty (University of Minnesota Press 2015) xii. See also, Kirsty Duncanson, ‘Being Engaged in Colonial Critique by Mojo Juju’s “Native Tongue”’ in Kim D Weinert, Karen Crawley and Kieran Tranter (eds), Law, Lawyers and Justice – Through Australian Lenses (Routledge 2020) 144, 164.

88 ibid. Alison Vivian and others, ‘Indigenous Self-Government in the Australian Federation’ (2017) 20(1) AILR 215, 215–17.

89 Lisa French, ‘David Gulpilil, Aboriginal Humour and Australian Cinema’ (2014) 8(1) Studies in Australasian Cinema 34, 41–42.

90 John Gardiner-Garden, ‘From Dispossession to Reconciliation’ (1999) Commonwealth of Australia Parliament Research Paper (Research Paper, 29 June 1999) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp9899/99Rp27.#major> accessed 20 July 2020.

91 Cole Kirkby, ‘Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861–1961’ (2018) Legal Studies Research Paper Series No 18/77, The University of Sydney Law School, 18.

92 Hart (n 69) 274.

93 Irene Watson, ‘Buried Alive’ (2002) 13(3) Law & Crit 252.

94 Hart (n 69) 270.

95 Green Ants 17:05–17:19.

96 Green Ants 17:27–17:44.

97 David Scott, ‘Colonial Government’ in Jonathan Xavier Inda (ed), Anthropologies of Modernity: Foucault, Governmentality, and Life Politics (Wiley 2008) 31.

98 Aileen Moreton-Robins, ‘Introduction’ in Aileen Moreton-Robinson (ed), Sovereign Subjects – Indigenous Sovereignty Matters (Allen and Unwin 2007) 3.

99 Watson (n 93) 257.

100 Greta Bird, ‘Koori Cultural Heritage: reclaiming the past?’ in Greta Bird and others (eds), Majah: Indigenous People and the Law (Federation Press 1996) 100–28.

101 Green Ants 1:01:58–1:03:34.

102 Amartya Sen, ‘Violence and Civil Society’ in Amartya Sen (ed), Peace and Democratic Society (Open Book Publishers 2011) 11.

103 Green Ants 1:04:08–1:04:11.

104 Green Ants 1:04:35.

105 Green Ants 1:04:57.

106 [1916] UKPC 53.

107 Green Ants 1:05:43–1:06:33.

108 Ludwig Wittgenstein, Philosophical Investigations (GEM Anscombe tr, 2nd edn, Basil Blackwell 1974) 223.

109 Green Ants 1:09:08–1:09:21.

110 Green Ants 1:10:01.

111 Green Ants 1:10:11–1:10:14.

112 Green Ants 35:16.

113 Green Ants 39:34.

114 Green Ants 39:19–38:23.

115 Laura Joseph and Honni van Rijswijk, ‘Going Bunta on Western Law – Violent Jurisdictions, Melodrama and the Australian Carceral Imaginary in Wentworth’ in Kim D Weinert and others (eds), Law, Lawyers and Justice – Through Australian Lenses (Routledge 2020) 280.