Foundation Year Courses and Electives in Environmental /Natural Resources Law
By Gary D Meyers.1
In over 25 years of teaching law in the US and Australia, I have been able to incorporate Indigenous issues into a wide variety of courses, including environmental law and natural resources law electives; electives dedicated specifically to native title law; mandatory core courses; as well as foundation or introductory law courses. This article offers some brief comments regarding the incorporation of Indigenous issues into two of these areas, namely, foundation year courses and environmental/natural resources law electives. Hopefully, these comments will stimulate others to consider how they might also incorporate Indigenous issues into their courses. Part I of the paper briefly reviews the inclusion of Indigenous legal issues in the foundation year at the University of Tasmania School of Law (UTAS). Part II discusses the way in which I include Indigenous issues in environmental law electives.
I. Foundation Year Courses
The introduction of Indigenous issues into Australian foundation law courses is of particular importance. These are the first courses that a new student will encounter; critically, they set the tone for the remainder of a law student’s academic career. Indigenous issues are important at this early stage because, as required courses, foundation units provide all students with uniform exposure to fundamental Indigenous concerns. Moreover, they are crucial to building a knowledge platform that can be built upon in future courses; later-year teachers can avoid unnecessary repetition and need not ‘reinvent the wheel’. Instead, teachers can proceed with new material in core subjects such as property law, criminal law, evidence law, as well as in various elective units, confident that students share some background knowledge of Indigenous legal issues that can be further developed.
At least since 1992 and the High Court’s decision in Mabo v Queensland,2 the easiest way to introduce Indigenous legal issues in introductory law courses in Australia has been to include a lecture or lectures on native title law. For a number of years, I delivered such lectures at Murdoch University and have continued to give native title lectures at the University of Tasmania (‘UTAS’). The difference at the University of Tasmania is that the native title lecture is provided ‘in context’, that is, as a component of the School’s Legal Systems course.
The UTAS Approach
There is no direct admission to the LLB at UTAS; all students must complete two foundation-year courses in order to be admitted to the law degree: Introduction to Law (Law 121) in semester 1 and Legal Systems (Law 122) in semester 2. Law 121 introduces students to some basic concepts in law, including the role of liberalism in parliamentary democracies; judge versus jury decision making; alternative dispute resolution; the life of the lawyer; the legal profession and legal education. This course also introduces students to essential skills such as legal research, legal writing and legal problem solving.
Indigenous issues are introduced in the Legal Systems course. The name of the course is instructive: this unit introduces students to a variety of ‘legal systems’, including International Law, Customary Law, the Common Law, and Statutory Law (including material on statutory construction and interpretation).
The customary law component of the Law 122 course is historically taught over two and a half teaching weeks, which equates to four or five hours of lectures and weekly seminars. In 2008, there were four hours of lectures; during this time students discussed Aboriginal Customary Law, Aboriginal Law before Cook, Traditional Law (including punishments and ‘payback’), and Comparative Native Title Law. The small group seminars tracked the topics covered in lectures.
We have three aims in this part of the course. First, we introduce students to the fact that, when Europeans first arrived in Australia, there were already customary legal/dispute management systems operating in many Indigenous societies. Second, we ask students to consider how these systems are currently reflected in Australian law. Finally, we encourage students to consider whether and how customary law might better be acknowledged in the Australian legal system.3 Meaningful assessment of Indigenous course content is critical in foundation year courses; it reinforces the centrality of Indigenous issues to the Australian legal system and cements their importance in students’ work ethic. Accordingly, the customary law component of the Legal Systems course is always assessed. In some years, students have been assessed on the topic twice: once with a 1000 word research essay, and once with a question in the final exam. Historically, where we present it as one of several options, roughly 30-35% of students choose the customary law topic for their essay. In 2008, students were required to answer a customary law essay question on their final exam.
By incorporating Indigenous issues into the mainstream curriculum in this way, we allow students to place their study of Australia’s legal system in a wider socio-historical context.
II. Teaching Indigenous Issues in Environmental Electives
I have taught a number of environmental law and natural resources law courses incorporating Indigenous legal issues. More specialised courses such as water law, mining law, forest law and policy, wildlife law, international environmental law, or law of the sea offer opportunities to present targeted material on those topics including:
the potential for Indigenous control of resources such as water or minerals;
access to hunting and fishing resources, and exceptions to state/national/international legislation regarding endangered species for Indigenous hunting and fishing;
the potential for ownership of, or shared rights to, marine fisheries resources;
participation in biodiversity management and conservation; and
participation in benefit sharing that may arise from intellectual property rights in genetic resources.
Survey courses in environmental law and natural resources law may introduce most, if not all, of these issues. Topics specific to Australia may also be covered, including native title law, Indigenous participation in co-management of national parks, and Aboriginal heritage protection legislation.
A survey course is designed to present a broad overview of many issues; accordingly, one is likely to curtail Indigenous issues in an environmental law elective to a limited number of lectures. In my view, the task of introducing Indigenous legal issues in environmental/natural resources law is essentially a comparative task. Accordingly, in my courses, Indigenous perspectives are considered first, included in an introductory lecture on environmental ethics. Later in the semester, I typically devote two, sometimes three, specific lecture periods to a review of Indigenous issues, with a particular focus on native title law. In order to provide the comparative context for a discussion of native title rights in Australia, I spend the first lecture briefly reviewing the history and development of native title law.4 I also present a survey of ‘common law’ jurisprudence, focusing on the development of native title law in the US, Canada and New Zealand. In the second lecture, I provide a broad review of native title jurisprudence in Australia.5 I typically divide my classes between lectures and student research paper presentations. Depending on class size, I may also include an additional lecture on a special topic such as Aboriginal heritage legislation or Indigenous traditional knowledge rights. Assessment in these courses is usually a major research paper and a 25-30 minute presentation by each student of his or her paper. Generally, I find that a number of students will present research papers on Indigenous issues in environmental/natural resources law. In this way, students are exposed to a broader range of Indigenous issues in mainstream environmental law courses.
As indicated at the outset, it is critical that law students be exposed to Indigenous legal issues in first year and foundation courses. These formative, introductory subjects set the tone for the remainder of students’ legal education. Through the Indigenous component of the Legal Systems course, the UTAS staff has attempted to provide first year students with an introductory historical context in which to consider contemporary socio-legal issues.
Reviewing the development of the Australian legal system without considering what existed before Europeans arrived in Australia is a denial of historical fact. It is also a denial of those contemporary issues that continue to confront our legal regime. These issues cannot be properly understood without their historical context. In considering historical and modern legal developments, both in compulsory and elective courses, the background provided by an early introduction to Indigenous legal issues is invaluable. It assists both students and faculty members to come to grips with how these issues have emerged, and how they can be addressed in the future.
Environmental law elective units provide a wide range of options to consider Indigenous legal issues. My approach is essentially comparative, both in the way that I teach environmental law, and in the way that I incorporate Indigenous content into those courses. I set the common law context for discussion of native title law, then move on to the Australian experience. By including special topics and student research papers, I seek to promote, analyse and discuss Indigenous issues in the legal curriculum.
Of course, there are probably as many ways to teach Indigenous issues in these offerings as there are teachers of environmental law courses in Australia. What is important, though, is that we continue to present students with meaningful consideration of these issues throughout their legal education.
Prof Meyers [BA (Cum Laude); JD; LLM] joined the University of Tasmania Law Faculty in 2007 as an Honorary Research Fellow and was appointed Professor of Law in 2008. He taught at Murdoch University School of Law for 15 years and was appointed Emeritus Professor of Law in 2007. While at Murdoch, he was the inaugural Director of the Law School’s Indigenous Pre-Law Program in 1999-2000 and again in 2004. Previously, he served as Adjunct Professor of Law (1984-91) and Assistant Dean/Director of the Environmental Law Program at Lewis & Clark Law School (1983-88).
This essay arises from two papers presented at the inaugural Indigenous Legal Studies Association conference held in July 2008, The Future of Indigenous Legal Studies in Australian Law Schools: Incorporating Indigenous Issues in Law Curricula, (Indigenous Legal Studies Association, Inaugural Conference, University of Sydney Faculty of Law, Sydney, NSW, 10-11 July 2008).
2 175 CLR 1 (1992).
3 There are a few particularly helpful sources of information on customary law that are useful not just for foundation courses but for a variety of core and elective subjects: The WA Law Reform Commission, Final Report: The Interaction of WA Law with Aboriginal Law and Culture, ( 2006), available at ; Northern Territory Law Reform Committee (NTLRC), Report of the Committee of Inquiry into Aboriginal Customary Law: Report of Aboriginal Customary Law (2003) available at ; New South Wales Law Reform Commission, Report 96 (2000) – Sentencing Aboriginal Offenders (Chapter 3, Aboriginal Customary Law), at ; and Australian Law Reform Commission, Recognition of Aboriginal Customary Laws (1986), available at .
4 Two particularly useful texts are: Kent McNeil, Common Law Aboriginal Title (1989); and, Robert A Williams, Jr, The American Indian in Western Legal Thought: The Discourses of Conquest (1990).
5 The potential list of resources for teaching native title this way in environmental law courses is prohibitive. Therefore, I will list only two: Garth Nettheim, Gary D Meyers, and Donna Craig, Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Management Rights (2002); and Simon Young, The Trouble with Tradition: Native Title and Cultural Change (2008).