Ting indigenous cu



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Deans Review of the ANU College of

Law 2011 (ANU, 2011), 1.

30 Ibid, 14.

31 Ibid.
Indigenous law classes in the curriculum was not straightforward, as there is a dearth of active research in this area generally, and a reliance on research-led teaching can limit the range of available Indigenous related electives. Additionally, in teaching ICC, there can be tension between the opportunity to engage in deep learning in a small number of topics and the temptation to provide a broad survey of Indigenous peoples and their interactions with the law. At present there is insufficient data, or collective experience, to gauge which is the better pedagogic approach in this context, or to identify an ICC strand which would find favour with students and work within resource constraints and the requirements of the broader pedagogy in the wide range of disciplines that cover all university courses, vocational or otherwise. The ANU Law School approved a unit of study that included the study of a limited number of legal areas in some depth, reinforced through research-based assessment items and reflective exercises. This reflected an appropriate compromise in developing ICC using research-led teaching.
A Aim in Improving ICC
The broader aim of the Law School is to promote ICC through independent learning in areas of law affecting Indigenous peoples. As with other elective units, the aim the unit is to achieve a deeper coverage of subject matter, building on the material covered in the Priestley 11 and compulsory units. The coverage of Indigenous materials in Priestley 11 units is either largely incidental or quite small. Available information generally appears to reinforce the perception that Indigenous people are statistically underrepresented in education, employment and good health statistics and are over-represented in areas of petty crime, poor mental health, unemployment, sexual offences and homelessness.32 However, for a development of the understanding in the first limb of the ICC definition, students must internalise the fact that many of these issues are intergenerational and a result of circumstances which have their genesis in Indigenous history. These detrimental conditions are not intrinsically permanent but nonetheless will require imaginative solutions to address in the shortest possible time. Unless student understanding of the deeper issues is well-developed, their knowledge of Indigenous issues is likely to remain quite unsophisticated and shallow, and hence their proposed solutions likely to be limited — a symptom clearly visible in the broader polity. Understanding these underlying issues is crucial in developing sustainable and fair solutions. This understanding helps to contextualise the current situation for Indigenous peoples, which in turn will help students to develop their competence in the skills limb of the ICC definition.
32 UACC Report, above n 2, 32.
Although not the only avenue for non-Indigenous people, ICC generally develops with an appreciation of why and how Indigenous people can feel alienated in an otherwise open, democratic and free society. The study of Indigenous alienation can be linked to forced removal from traditional lands and removal of children from parents

and consequently from traditional language and culture. In making the link with law, the unit examines circumscribed, abstract Western legal concepts such as ‘alienable interests in land’ or the English Crowns acquisition and desire to acquire sovereignty in a land

12,000 miles from its homeland, and to do so for purely economic and hegemonic purposes that nevertheless resulted in removal of Indigenous people from both their traditional lands and their families — a dispossession that is compounded by the simultaneous denigration and rejection of Indigenous peoples and their ontologies. Understanding the associated dissonance that is often caused for Indigenous peoples by ‘isolated’, non-contextualised discussions of such legal concepts, including the legal fictions that are constructed to allow otherwise intelligent and caring Europeans to accept these notions as ‘right’ and ‘just’, is also an important part of developing knowledge and understanding within the meaning of the first limb of the ICC definition.

The ethic of the class is to acquire the knowledge and understanding required for reasonable levels of ICC and then knowingly to promote the creation of substantive equality for Indigenous peoples by learning to accept Indigenous people and ways peoples as ‘truly equal’, and not because they have been assimilated.

What is evident is that a small cohort studying a limited number of units cannot satisfy UAs aim of a general acquisition of ICC. It is however important to assess whether the limited number of students exposed to the unit will gain an adequate depth of understanding. What will constitute ‘adequate’ will depend upon the aims of the various programs. For UA, it is that students are able to follow its guidelines;33 for the ANU unit it is to enable students to accept Indigenous ontologies ‘as they find them’ and to work towards the creation of true equality including in the Constitution.

The broader separate question is: how will these methods be adjusted to cover a large cohort of law students, and eventually to all university students? Or do newer more appropriate units need to be developed to achieve ICC at a general level? There is insufficient data at the ANU to answer these questions definitively but it appears evident that ICC must be included in all or at least the majority of the Priestley 11 units and some clinical units if all law students are to acquire this skill and attribute.


33 UACC Guiding Principles, above n 4, 6 8
B Substantive Content: Indigenous Australians and the Law Unit
The ANU Law Schools approach to selection of unit material is only one such approach to content determination and is subject to the many constraints mentioned above. The unit commences with a general and broad introduction covering some groundwork by examining the history of contact, Indigenous identity and the development of the nation. Indigenous perspectives are introduced to complement the current written Australian legal history, which at present is significantly empty of Indigenous content, but is slowly evolving to include such content. The three other major components of the unit are now examined, along with a rationale for inclusion.

Firstly, for the law, and the teaching of law, arguably a key area is to examine how, why and more importantly whether it is true that the law permitted the exclusion of Indigenous people from the earliest days of English settlement and then through Federation. Thus the study of the Australian Constitution and its evolution, particularly the aspects that permitted such exclusion are useful components of study. Further, that part of Constitutional law which covers the constitutional provisions which directly and indirectly affect or touch upon the lives of Indigenous people are thus included in the curriculum.

Secondly, while colonisation appears to have had a devastating impact on many lands and civilisations, the treatment of Australian Indigenous people was unique. This is probably because the colonists did not recognise or understand the complexities of Indigenous connections with their lands and its waters, and recognition of such connections did not occur at law until relatively recently.34

Thus the law, as it stood for more than 200 years, held that the Australian Continent was ‘almost uninhabited’35 and that the few humanoids who were present and being genetically inadequate and intellectually inferior36 were ‘barely civilised’37 at English settlement. Further, it was not until 1992 that the High Court, in its seminal case, acknowledged the falsity of this notion of an empty land.38 Justice

34 Milirrupum v Nabalco Co Ltd (1971) 17 FLR 141 (‘Gove Land Rights Case’).

35 Cooper v Stuart (1889) 14 App Cas 286, 291

36 Mary Ann Bin-Sallik, ‘Racist Language’, Charles Darwin University Public Lecture Series, Charles Darwin University, 6 May 2008

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