Prefigurative Legality and Relational Ontologies: Learning from Environmental Justice Struggles in Australia

Flowing through Western Australia’s Kimberley region, the Martuwarra Fitzroy River is under threat from extractive development, like so much of our global commons. In response to this threat, the Martuwarra Fitzroy River Council has been working to protect the river, employing innovative quasi-legal strategies that challenge Western conceptions of law, rights, and nature.

Across the continent, in the low-lying islands of the Torres Strait, eight islanders known as the ‘Torres Strait Eight’ drafted a successful communication to the UN Human Rights Committee (UNHRC) highlighting the existential threat facing their people due to climate change, while simultaneously pushing the boundaries of international human rights law.

These two environmental justice movements, led by Indigenous peoples, share several intriguing features, including their use of what Amy Cohen and Bronwen Morgan have called ‘prefigurative legality‘, in addition to engaging in what Angela Harris calls ‘legal ontological work‘ by rethinking legal subjecthood for both non-human entities (like rivers) and human communities. In a forthcoming article, we bring together these concepts of prefigurative legality and legal ontological work to explore what can be learned from the way that Indigenous-led environmental and climate justice actions are reimagining and reconstructing law to better respond to ecological crises.

 

Prefigurative Legality and Legal Ontological Work

Cohen and Morgan’s concept of ‘prefigurative legality’ examines efforts to use legal language and forms to imagine alternative legal realities. This approach goes beyond traditional protest or engagement with existing institutions, creating a ‘third space’ where activists can perform and enact desired legal changes. The Martuwarra Fitzroy River Council and the Torres Strait Eight exemplify this concept by using familiar legal forms to assert Indigenous law and ontologies within settler-colonial frameworks. For example, members of the Council have given evidence in a People’s Tribunal for the Rights of Nature, asserted jurisdiction via a Declaration, and are planning to continue to raise people’s consciousness through political theatre that highlights the Martuwarra’s status as a living ancestral being. Although the Torres Strait Eight used a traditional UN Human Rights mechanism (a communication to the UNHRC), we argue this can still be considered prefigurative due to the way the partly performative nature of engagement with unenforceable international mechanisms is used to both imagine and construct law otherwise – to ‘care for Country’ in deference to ancestors.

These actions also perform crucial ‘legal ontological work’ by mediating legal orders. In doing so they promote a form of ‘strong legal pluralism’, asserting the independent authority of Indigenous legal orders, rather than identifying them merely as subsets of the settler-colonial system. We suggest that by combining prefigurative legality with strong legal pluralism, these movements challenge fundamental assumptions about the nature of law, rights, and human-environment relationships.

 

Navigating Incommensurability

Our article wrestles with a critical question raised by Indigenous scholars like Aileen Moreton-Robinson and Aaron Mills: Can Indigenous and settler-colonial legal ontologies be reconciled, or are they fundamentally incommensurable? Some warn of risks like ‘constitutional capture’ or ‘ontological submission’, where Indigenous concepts lose their transformative power when translated into dominant legal frameworks.

The two case studies discussed above, and in our article, suggest prefigurative legal strategies might offer a way to navigate these tensions. By performing alternative legal realities without fully submitting to existing structures, Indigenous actors may be creating spaces for ‘cosmopolitics’ – the negotiation of interconnections between different ontological worlds.

 

Learning from Indigenous Leadership

Several key lessons emerge from these Indigenous-led environmental and climate justice actions:

• The power of performance: Enacting alternative legal realities makes visible the existence and authority of Indigenous legal orders.
• Ontological diversity in practice: These actions demonstrate fundamentally different understandings of law, rights, and human-environment relationships through creative legal engagement.
• Navigating pluralism: Indigenous leaders demonstrate ways of asserting the authority of First Law while simultaneously engaging with settler-colonial legal forms.
• Multifaceted strategies: The case studies reveal how activists skilfully combine prefigurative approaches with more traditional legal and political engagements.
• Decolonial futures: These prefigurative actions invite all people into new relationships with land, water, and law that challenge extractive and colonial paradigms.

By learning from these struggles, we gain insight into how law might be reimagined to better serve both human and more-than-human worlds. As climate crises intensify and calls for systemic transformation grow louder, the prefigurative legal strategies employed by Indigenous activists in Australia offer inspiration for reimagining law’s role in fostering ecological justice and decolonisation. Their actions challenge us to expand our analytical horizons and engage seriously with ontological diversity in legal systems, pointing towards more pluralistic and ecologically grounded legal futures.

 

See further: Cristy Clark and Beth Goldblatt, ‘Prefiguring legal alternatives in environmental and climate justice struggles in Australia‘, Journal of Human Rights and the Environment, Volume 15, No. 2, 2024, pp. 214-236.