13 February 2009. examiningIndigenousissuesincolonisedcommonlawjurisdictions similartoAustralia;andabriefexaminationofIndigenouspeopleat international law including an examination of the UN Declaration ontheRightsofIndigenousPeople(UNDRIP).62 Theclassaimsa depth of coverage in preference to a more comprehensive survey or broader coverage of material.
Someoftheomittedcontentincludes:examinationindetailofthe legislationandcaselawoftheeffectsontheAboriginalcommunity oftheoperationoftheCorporations(Aboriginal AndTorresStrait Islander)Act2006(CATSIAct);examinationofAboriginalcultural heritage protection; broader human rights; international law; family law; child protection; and general criminal law issues. It would be difficult to sensibly cover the range of issues and areas of law that affect Indigenous people in any significant depth, and exclusion of importanttopicsisnecessaryandthusinevitable,butcannonetheless be a subjectof critique.It is thereforenecessaryto leaveout content (or in some cases encourage incorporation of Indigenous content in otherlawunits).Theunitalsocannotbecharacterisedasfocusedon critical race theory.63
Further,theunitdoesnotincludeIndigenouslaws—asopposed toWesternlawsthatimpactuponIndigenousAustralians.Suchalaw unitisstillsomewayinthefuture,bothattheANUandinAustralia ingeneral.64 Asapointofcomparison,intheCanadianexperience Victoria Law School provides a full program in Indigenous law, some details of which can be gleaned from tits publicity material.65
However,ideally,ICCcontentwouldincorporatesuchIndigenous perspectives, laws, knowledge, tangible and intangible heritage,
62 UnitedNationsDeclarationontheRightsofIndigenousPeoplesGA/RES/61/295, UNGAOR,61stsess,107thplenmtg,SuppNo49,UNDoc A/RES/61/295, UNGAOR (13 September 2007); Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures on Indigenous Peoples’Claims in International andComparativeLaw’ (2001)34NewYorkUniversityJournalofInternational Law and Politics 189; Benedict Kingsbury, ‘Claims by non-State Groups in International Law’(1992) 25 Cornell International Law Journal 481
65 See generally John Borrows, Canada’s Indigenous Constitution (University of TorontoPress,2010)whicharguesfortherecognitionofAboriginallawasathird sourceoflaw(afterEnglishcommonlawandFrenchcivillaw);JeremyWebber,
‘RelationsofForceandRelationsofJustice: TheEmergenceofNormative CommunitybetweenColonistsandAboriginalPeoples’(1995)33OsgoodeHall LawJournal623.ThepositiononuseofcustomaryAboriginallawinAustralia is that Federal government laws ‘prevent judges taking account of customary law whenpassingsentence’—apositionopposed(amongothers)bytheLawCouncil of Australia:ChrisMerritt,‘Endbanoncustomarylawinsentencing,urgeslaw council’,The Australian,18February,2010. Suchprohibitionswouldmakethe discussionontheteachingofAboriginallawsatAustralianuniversitiessomewhat premature. and skills (‘Indigenous knowledge’),66 in the general university curriculum. Thisultimateaimthenwouldseeknotonlytoincrease thelevelofICC‘aboutIndigenouspeople’ amongnon-Indigenous students but to help enrich their lives through knowing, feeling, seeingthroughIndigenouseyes,ears,heartsandminds—inasense becomingonewiththeirIndigenouscompatriotsinexperiencing thesacrednessoftheDreamtimevisionofthistimelessland. This body of knowledge is still largely not accessible through traditional Western educational avenues, but is, and will, become increasingly accessiblethroughinnovativeprogramssuchasNIRAKNmentioned above, which intend to help accelerate the process of Indigenous engagement and knowledge creation with the academy. D Teaching and Learning Considerations Theprimarypedagogicalapproachtotheunitisstudent-centred, withassessmentalignedtolearningoutcomeswhichdemonstrate in-depth understanding. Class sizes are relatively small by design, which is potentially inconsistent with the aim of making ICC a generic attribute or skill. Indigenous students are a minority in all law classes. Further, a self-selecting group of later year students forms the class cohort, which limits the number of students gaining ICC 67
Inclass,themethodofdeliveryisbasicallyastandardlectureand tutorial model. However, to increase student engagement, lectures andtutorialsareinteractive, withamarkattached toactiveclass participation.Thesubstantivelegalcontentconcentratesonprimary sources: legislation and case law for domestic law, and primary international law materials.68
The unit employs what is broadly referred to as the Socratic Method, a teaching method used in the Law School. Students are quizzedsemi-randomlyonthereadingstogaugetheirunderstanding of the broader legal implications of the law. Law students generally faceahighlevelofstress,69andthusitisnecessarytotakereasonable
66 Itisconcededthattheuseoftheterm‘Indigenousknowledge’,sometimesreferred toas‘Indigenousknowledges’,doesnotenjoyuniversalacceptance.Itisused in this context to highlight the complexity that may arise from a plurality of perspectivesandknowledge-producingresearchthatstemsfromsuch diversityas is currently present in theAustralian Indigenous community.
67 Foracritiqueofthisphenomenonofself-selectionanditsadverseimpacton legal education see Prue EVines, ‘Putting Indigenous Issues into the Curriculum: Succession and Equity’(2012) 4 Ngiya: Talk the Law 1
68 Statute of The International Court of Justice art 38(1)
69 MassimilianoTaniandPrueVines,‘PointerstoDepressionintheLegalAcademy andtheProfession?’(2009)19LegalEducationReview3,6. Teachersspoke regularlytotheclassonthisissuetohelpalleviatestudents’ concernsandhelp themto‘relax’alittle.Studentfeedbackonstress,includingstressintroduced by the Socratic Method (after their initial apprehension), confirmed that taking a more relaxed approach to assessing participation helped reduce stress levels. steps to help allay student concerns and reduce stress levels in an interactive environment that can sometimes include confronting materials.
‘rightanswer’:theobjectoftheexerciseistopromoteinformedand respectful debate on some very complex human issues and that in anyevent,thereseldomisa‘rightanswer’.Thestudentfeedback on the ‘relaxed delivery and teaching style’, an intentional element ofteaching method, isarguably workingto help overcome some of the stressorsandtohelp promote active thinking onthe issuesand therefore deeper learning outcomes.
The Socratic Method of interaction also loosely aligns with the traditionsandcultural practice oforaltraditionsofteaching and learninginIndigenouscultures,whichhelpstheperceptionthat thismethodismoreauthentic, encouragesparticipation andhelps overcome student reticence. Interactive learning also helps students to tease out the complexities of the material while maintaining a livelierbut‘safe’classlearningenvironment.Studentengagement isalsoenhancedthroughperformativitysuchasroleplays,scenario- based learning and practice moots in conjunction with general legal argument,basedonpre-set‘facts’andreading.Theaimhereisfor studentsto‘feel’whatpracticalengagementwithIndigenouspeople might mean in a legal setting in their future practice of law.
Takinganexperientialapproach,70orprovidingongoingpractical opportunities‘individuallytoengage’71 byencouragingstudentsto participate asvolunteersorobserversatIndigenousconferences, symposiaandworkshopsorganisedbythe ANU,furtherreinforces Indigenous pedagogy and teaching methods. Such opportunities allow students to hear from and interact with Indigenous lawyers, elders, and others working on Indigenous issues and to do so in a direct, face-to-face or first-hand manner.
The second limb of the ICC definition requires students to recognisethat‘Indigenousclients’areasdiverseasanyothergroup, andtodevelopstudents’ owncommunicationsskillsinawaythat would enable them to act with a degree of empathy based on a deeper level of knowledge and experience. Students are encouraged to identify relevant distinctions by asking: ‘What does “law” meantoaparticularIndigenouscommunity?’and‘Howandwhat is the appropriate language that most effectively and accurately communicates “my reflection ofIndigenous perspective”, whatever that might mean, to the client, the tribunal or the court?’
The Law School also worksclosely with the National Centre for