76068 Indigenous Peoples and the Law
Warning: The information on this page is indicative. The subject outline for a
particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2017 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): ( 70317 Real Property OR (70110 Introduction to Law AND (76006c Public International Law OR 70108c Public International Law)))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Description
The relationship between Indigenous peoples and the law goes to the foundation of Australia's legal and political identity. This subject considers a range of historical and current issues between Indigenous peoples and the law. Competition for land ownership has defined and driven race relations in Australia. This subject examines the historical dispossession of Indigenous people with reference to how this has impacted on current legal relations and debates.
Aboriginal and Torres Strait Islander peoples' dispossession by law and war, together with the Mabo decision, is evaluated. Land rights legislation, native title legislation and subsequent common law developments are also considered. Indigenous Australians are also the most incarcerated people in the world.
Considering this, their relations with the criminal justice system with particular reference to community police relations is discussed. Also, the policies of dispersal of communities and the forced removal of children from their families are considered, with particular reference to current impacts in areas such as welfare law.
The issue of self-determination is also considered in depth. Between 1972 and 1995 all federal governments had a policy of self-determination with regard to Indigenous peoples. The meanings and implications of this policy are examined in the context of self-determination policies in comparable countries such as Canada and the United States. Consideration is given to Australian and Canadian models of self-government, the Aboriginal and Torres Strait Islander Commission (ATSIC) and international standards and developing norms with respect to self-determination. The subject concludes with consideration of comparative ontologies and the scope for recognition of Indigenous laws.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 3.1. | Think critically about set readings to identify and articulate legal issues in context |
|---|---|
| 3.4. | Apply reasoning and research from recommended sources to generate appropriate responses |
| 5A.8. | Demonstrate the ability to construct a logical, reasoned and persuasive argument |
| 5C.1. | Demonstrate active listening skills and respond with appropriate verbal and non verbal interpersonal messages in group discussion |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including the Australian legal system, social justice, cultural and international contexts and the principles and values of ethical practice. (1.0) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively including an ability to identify and articulate legal issues, apply reasoning and research, engage in critical analysis and make reasoned choices. (3.0) - Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (4.0) - Communication and Collaboration
Effective and appropriate communication skills including highly effective use of the English language, an ability to inform, analyse, report and persuade using an appropriate medium and message and an ability to respond appropriately. (5.0)
Teaching and learning strategies
Strategy 1; Reading and reflecting on the course materials
Strategy 2 Responding orally and in writing to online questions set by the seminar leader and engaging orally with other students and the seminar leader in seminars
Strategy 3: Reflection at a deeper level on particular questions within the material in your critical journal
Subject Delivery
This subject will be delivered primarily through an interactive seminar format, as well as through audio visual materials. The seminar format will assist you to consolidate and develop the knowledge that you acquire through your readings and critical journal. Through classroom discussion your capacity for critical thought will be nurtured.
In order to get the most out of seminars, you will need to prepare prior to class and to participate in class discussion.
Content (topics)
- Race and identity
- Historical and contemporary contestation of the imposition of Anglo law upon Indigenous peoples
- Government policy from assimilation to reparation?
- What does non discrimination mean at law?
- Indigenous representation in Australian policy making
- Indigenous peoples and contemporary child welfare
- Indigenous peoples and the criminal justice system
- Land Rights
- Native title
- Indigenous Peoples and International Law
- The relationship between reconciliation and the rights agenda
Assessment
Assessment task 1: Class Participation
| Objective(s): | This task addresses the following subject learning objectives: 3.1, 3.4, 5A.8 and 5C.1 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 4.0 |
|---|---|
| Weight: | 20% |
| Criteria: | Your mark will take into account the following criteria:
|
Assessment task 2: Class Presentation
| Objective(s): | This task addresses the following subject learning objectives: 3.1, 3.4, 5A.8 and 5C.1 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
|---|---|
| Weight: | 20% |
| Criteria: | Clear and succinct overview of a seminar topic with an argument in response to the allocated question. |
Assessment task 3: Critical Journal
| Objective(s): | This task addresses the following subject learning objectives: 3.1, 3.4, 5A.8 and 5C.1 This task contributes specifically to the development of the following graduate attributes: 1.0, 3.0 and 5.0 |
|---|---|
| Weight: | 60% |
| Length: | 4000 words |
| Criteria: | Analytical response to a question on the course materials each week. You are a required to respond in an analytical manner to one question on the course materials each week, prior to class from week 2 onwards. The questions will be provided online. Your response must directly engage an article and if relevant to the question, more than one article, from the allocated weeks readings. Your response should reflect a deep reading of the materials and as the course progresses a developing sophistication in the ways in which you challenge and extend your understandings. Each journal response for weeks 2 to 10 should be a maximum of 300 words. This requires a disciplined use of language. This assessment requires critical thinking rather than descriptive recounts. Your journal responses should be brought to class each week. Your journal should be submitted through the LIO on Tuesday 19th August, Tuesday 9 September and Tuesday 21st October. Your final journal submission on a question pertaining to the materials for week 11 should be 1000 words and it should be submitted by Tuesday October 28th. Each submission for weeks 2 to 10 is worth 5% ie submissions 2 to 10 are worth a total of 45% and the final submission is worth 15%. You will be provided feedback and a mark for your journal entry after each submission. |
Required texts
Electronic readings for each week provided through the e library
Recommended texts
- Alston, P. 2001. Peoples’ Rights, Oxford University Press, Oxford.
- Anaya, J. 2004. Indigenous Peoples in International Law, 2nd edition, OUP.
- Bartlett, R. 1993. The Mabo Decision, Butterworths, Sydney..
- Behrendt, L. 2003. Achieving Social Justice, Federation Press, Sydney.
- Belgrave, M., Kawhuru, M. and Williams, D. (eds). 2005. Waitangi revisited. Perspectives on the Treaty of Waitangi, Oxford University Press.
- Blagg, H. 2008. Crime Aboriginality and the Decolonisation of Justice. Hawkins Press, Sydney.
- Brennan, S., Behrendt, L., Strelin, L. and Williams, G. 2005. Treaty, The Federation Press, Sydney.
- Borrows, J. 2002. Recovering Canada: The Resurgence of Indigenous Laws, University of Toronto Press.
- Coates, K and McHugh, P. 1998. Living Relationships. Kokiri Ngatahi: the Treaty of Waitangi in the New Millennium, Victoria University Press.
- Cunneen, C. 2001. Conflict, Politics and Crime, Allen and Unwin, Sydney.
- Cunneen, C. (ed) 1992. Aboriginal Perspectives on Criminal Justice, Sydney University Institute of Criminology, Monograph Series No 1, Sydney.
- Curthoys, A., Genovese, A. and Reilly, A. 2008. Rights and redemption: history, law and indigenous people. UNSW Press, Sydney.
- Durie, M. H. 1998. Te Mana, Te Kawanatanga: The Politics of Maori Self-Determination. Oxford University Press.
- Havemann, P. (ed) 1999. Indigenous People’s Rights in Australia, Canada and New Zealand, Oxford University Press, Auckland.
- Hazelhurst, K. (ed) 1987. Ivory Scales, UNSW Press, Sydney.
- Ivison, D., Patton, P. and Sanders, W. 2000. Political Theory and the Rights of Indigenous Peoples. Cambridge University Press, Cambridge.
- Johnston, E., Hinton, M., Rigney. D. 2008. Indigenous Australians and the Law, 2nd Ed, Routledge-Cavendish, London.
- Knop, K. 2002. Diversity and self-determination in international law, Cambridge University Press, Cambridge [Electronic copy available on UTS library catalogue].
- Langton, M., Tehan, M., Palmer, L. and Shain, K. 2004. Honour among nations? Treaties and agreements with Indigenous people, Melbourne University Press.
- Libesman. 2014. Decolonising Indigenous child welfare - comparative perspectives, Routledge, Oxford.
- McCorquoadale, R. 2000. Self-Determination in International Law, Dartmouth Publishers.
- McNeil, K. 2001. Emerging Justice. Native Law Centre, University of Saskatchewan.
- McRae, H, Nettheing, G; Anthony, T; Beacroft, L; Brennan, S; Davis, M; Jenki, T 2009. Indigenous Legal Issues : commentary and materials. 4th ed. Sydney:Thompson.
- Reynolds, H. 1996. Aboriginal Sovereignty, Allen and Unwin, Sydney.
- Reynolds, H. 1987. The Law of the Land, Penguin, 1987.
- Sullivan, P. 1996. Shooting the Banker: Essays on ATSIC and Self-Determination, North Australia Research Unit, ANU, Canberra.
- Williams, RA. 1990. The American Indian in Western Legal Thought: The Discourses of Conquest, Oxford University Press.
Other resources
Reports, Journals and General References
- Australian Human Rights Commission Annual Social Justice reports https://www.humanrights.gov.au/social_justice/sj_report/index.html
- Australian Human Rights Commission Annual Native Title reports https://www.humanrights.gov.au/social_justice/nt_report/index.html
- Australian Indigenous Law Review http://www.ilc.unsw.edu.au/publications/ailr/
- Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families http://www.austlii.edu.au/au/other/IndigLRes/stolen/
- Indigenous Law Bulletin http://www.ilc.unsw.edu.au/publications/ilb/index.asp
- Inquiry into the Protection of Northern Territory Children from Sexual Abuse (2007) Ampe Akelyernemane Meke Mekarle (Little Children are Sacred), Northern Territory Government http://www.inquirysaac.nt.gov.au/
- Royal Commission on Aboriginal Peoples, Canadian Report, 1996, http://www.austlii.edu.au/au/journals/AILR/1998/4.html
- Royal Commission into Aboriginal Deaths in Custody, National Report, 1991, http://www.austlii.edu.au/au/other/IndigLRes/rciadic/
- Royal Commission into Aboriginal Deaths in Custody Summary (prepared by Aboriginal Legal Rights Movement, Adelaide). http://www.austlii.edu.au/au/other/IndigLRes/rciadic/rciadic_summary/
Useful Websites
- Agreements, Treaties and Negotiated Settlements Project http://www.atns.net.au/
- Australian Domestic and Family Violence Clearinghouse, Indigenous Resources, http://www.austdvclearinghouse.unsw.edu.au/indigenous_res.html
- Australian Human Rights Commission, Aboriginal and Torres Strait Islander Social Justice, https://www.hreoc.gov.au/social_justice/index.html
- Australian Indigenous Law Library, AustLII http://www.austlii.edu.au/au/special/indigenous/
- Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Research Discussion Papers, http://www.aiatsis.gov.au/research/discussion.html
- AIATSIS, Native Title Research Unit, http://ntru.aiatsis.gov.au/
- AIATSIS, the Wentworth Lectures http://www1.aiatsis.gov.au/exhibitions/ wentworth/wentworthcontents.htm
- Australian Institute of Criminology, National Deaths in Custody Program http://www.aic.gov.au/about_aic/research_programs/nmp/0004.aspx
- British Columbia Treaty Commission http://www.bctreaty.net/
- Harvard Project on American Indian Economic development www.ksg.harvard.edu/hpaied
- Indigenous Justice Clearing House http://www.indigenousjustice.gov.au/
- Indigenous Land Corporation http://www.ilc.gov.au/site/page.cfm
- Indigenous Law Centre http://www.ilc.unsw.edu.au/
- Office of the High Commissioner for Human Rights, Indigenous Peoples http://www2.ohchr.org/english/issues/indigenous/index.htm
- Office of the Registrar of Indigenous Corporations http://www.orac.gov.au/
- Overcoming Indigenous Disadvantage reports http://www.pc.gov.au/gsp/reports/indigenous 2009 Report: http://www.pc.gov.au/gsp/reports/indigenous/ keyindicators2009
- Queensland Centre for Domestic and Family Violence, Indigenous Family Violence Prevention Forum http://www.noviolence.com.au/annualforum.html
- Torres Strait Regional Authority http://www.tsra.gov.au/
