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Legal Education Review 251, 252 3.

59 See also the discussion around n 31.

60 Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33 (7 August 2013).

61 See generally: The Report of the Expert Panel, ‘Recognising Aboriginal and

Torres Strait Islander People in the Constitution’, January 2012; Peter Mares,

Stolen Generations: beyond the apology’, National Interest, ABC Radio National,

13 February 2009.
examining Indigenous issues in colonised common law jurisdictions similar to Australia; and a brief examination of Indigenous people at international law including an examination of the UN Declaration on the Rights of Indigenous People (UN DRIP).62 The class aims a depth of coverage in preference to a more comprehensive survey or broader coverage of material.

Some of the omitted content includes: examination in detail of the legislation and case law of the effects on the Aboriginal community of the operation of the Corporations (Aboriginal And Torres Strait Islander) Act 2006 (CATSI Act); examination of Aboriginal cultural 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 important topics is necessary and thus inevitable, but can nonetheless be a subject of critique. It is therefore necessary to leave out content (or in some cases encourage incorporation of Indigenous content in other law units). The unit also cannot be characterised as focused on critical race theory.63

Further, the unit does not include Indigenous laws as opposed to Western laws that impact upon Indigenous Australians. Such a law unit is still some way in the future, both at the ANU and in Australia in general.64 As a point of comparison, in the Canadian experience Victoria Law School provides a full program in Indigenous law, some details of which can be gleaned from tits publicity material.65

However, ideally, ICC content would incorporate such Indigenous perspectives, laws, knowledge, tangible and intangible heritage,

62 United Nations Declaration on the Rights of Indigenous Peoples GA/RES/61/295, UNGAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295, UNGAOR (13 September 2007); Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures on Indigenous Peoples’ Claims in International and Comparative Law’ (2001) 34 New York University Journal of International Law and Politics 189; Benedict Kingsbury, ‘Claims by non-State Groups in International Law’ (1992) 25 Cornell International Law Journal 481

63 See Richard Delgado and Jean Stefancic, Critical Race Theory: The Cutting Edge

(Temple University Press, 2nd ed, 2000).

64 Kirsten Anker, Teaching “Indigenous Peoples and the Law” Whose Law?’ (2008)

33(3) Alternative Law Journal 132

65 See generally John Borrows, Canadas Indigenous Constitution (University of Toronto Press, 2010) which argues for the recognition of Aboriginal law as a third source of law (after English common law and French civil law); Jeremy Webber,

Relations of Force and Relations of Justice: The Emergence of Normative Community between Colonists and Aboriginal Peoples’ (1995) 33 Osgoode Hall Law Journal 623. The position on use of customary Aboriginal law in Australia is that Federal government laws ‘prevent judges taking account of customary law when passing sentence’ a position opposed (among others) by the Law Council of Australia: Chris Merritt, ‘End ban on customary law in sentencing, urges law council’, The Australian, 18 February, 2010. Such prohibitions would make the discussion on the teaching of Aboriginal laws at Australian universities somewhat premature.
and skills (‘Indigenous knowledge’),66 in the general university curriculum. This ultimate aim then would seek not only to increase the level of ICC ‘about Indigenous people’ among non-Indigenous students but to help enrich their lives through knowing, feeling, seeing through Indigenous eyes, ears, hearts and minds in a sense becoming one with their Indigenous compatriots in experiencing the sacredness of the Dreamtime vision of this timeless land. This body of knowledge is still largely not accessible through traditional Western educational avenues, but is, and will, become increasingly accessible through innovative programs such as NIRAKN mentioned above, which intend to help accelerate the process of Indigenous engagement and knowledge creation with the academy.
D Teaching and Learning Considerations
The primary pedagogical approach to the unit is student-centred, with assessment aligned to learning outcomes which demonstrate 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

In class, the method of delivery is basically a standard lecture and tutorial model. However, to increase student engagement, lectures and tutorials are interactive, with a mark attached to active class participation. The substantive legal content concentrates on primary 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 quizzed semi-randomly on the readings to gauge their understanding of the broader legal implications of the law. Law students generally face a high level of stress,69 and thus it is necessary to take reasonable

66 It is conceded that the use of the term ‘Indigenous knowledge’, sometimes referred to as ‘Indigenous knowledges’, does not enjoy universal acceptance. It is used in this context to highlight the complexity that may arise from a plurality of perspectives and knowledge-producing research that stems from such diversity as is currently present in the Australian Indigenous community.

67 For a critique of this phenomenon of self-selection and its adverse impact on legal education see Prue E Vines, ‘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 Massimiliano Tani and Prue Vines, ‘Pointers to Depression in the Legal Academy and the Profession?’ (2009) 19 Legal Education Review 3, 6. Teachers spoke regularly to the class on this issue to help alleviate students’ concerns and help them to ‘relax’ a little. Student feedback on stress, including stress introduced 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.

Students are assured that it is not so much about getting the

right answer’: the object of the exercise is to promote informed and respectful debate on some very complex human issues and that in any event, there seldom is a ‘right answer’. The student feedback on the ‘relaxed delivery and teaching style’, an intentional element of teaching method, is arguably working to help overcome some of the stressors and to help promote active thinking on the issues and therefore deeper learning outcomes.

The Socratic Method of interaction also loosely aligns with the traditions and cultural practice of oral traditions of teaching and learning in Indigenous cultures, which helps the perception that this method is more authentic, encourages participation and helps overcome student reticence. Interactive learning also helps students to tease out the complexities of the material while maintaining a livelier but ‘safe’ class learning environment. Student engagement is also enhanced through performativity such as role plays, scenario- based learning and practice moots in conjunction with general legal argument, based on pre-set ‘facts’ and reading. The aim here is for students to ‘feel’ what practical engagement with Indigenous people might mean in a legal setting in their future practice of law.

Taking an experiential approach,70 or providing ongoing practical opportunities ‘individually to engage’71 by encouraging students to participate as volunteers or observers at Indigenous conferences, symposia and workshops organised by the ANU, further reinforces 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 recognise that ‘Indigenous clients’ are as diverse as any other group, and to develop students’ own communications skills in a way that 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” mean to a particular Indigenous community?’ and ‘How and what is the appropriate language that most effectively and accurately communicates “my reflection of Indigenous perspective”, whatever that might mean, to the client, the tribunal or the court?’

The Law School also works closely with the National Centre for

Indigenous Studies (NCIS), headed by Professor Mick Dodson, a

70 For a Canadian application of this method at a law school see:

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