Indigenous Law Bulletin
by Dr Irene Watson
I currently work as an Associate Lecturer within the Law School of Flinders University. In the past I have coordinated, written up and taught Aboriginal Peoples and the Law at the University of Adelaide Law School and previously at the University of South Australia. I also work as a legal practitioner with the Aboriginal Legal Rights Movement.
In this brief space I want to reflect upon the critical need as I see it for giving greater focus to Aboriginal or Nunga perspectives in teaching the law, and to also consider the obstacles which impinge upon that imperative. It is through the possibility of Aboriginalising our legal education that we could bring another way of knowing the world and its legal systems, and thereby introduce students to other ways of coming to know the law. So the challenge for myself as a legal educator is to communicate the idea that there existed, and still exists today, Aboriginal legal systems and that these were the first legal systems of Australia. The challenge then for all Australians is to consider and to resolve what homeland, beyond patronage and rhetoric, will be given to our Aboriginal laws and ways of knowing the world.
For myself, even getting to this position in my thinking I found that the path was riddled with obstacles. From the beginning of my own experience as a law student I, like many others, have confronted the inherent racism within the academy. That racism manifested in many forms, one of which came in the form of not fitting into the mould of the upper echelons of white Adelaide establishment (where I studied law). Perhaps of more concern for myself, was the torture of studying and interacting in an academic environment that was both clueless and disinterested in understanding that there are other ways of coming to know the world and its laws. To reiterate from my experience, the opportunity to explore Aboriginal worldviews, let alone Aboriginal issues, within my university education was itself a terra nullius or vacant space in my own personal learning experiences.
In my current position as a legal educator the above issues still prevail. The issue of not quite ‘fitting in’ remains standard as the vacant spaces delegated to Aboriginal ways and knowledges remain mostly empty across University disciplines, and particularly within law. It is our mere Aboriginal presence in either the body of student or educator that challenges all of those largely unexplored issues of power, sovereignty and race. In exploring the above issues, how is it that we may come to measure our experiences? Should the conversation be centered on the idea of how well Aboriginal people fit into the academy as both student and academic? Or should it also be about evaluating how well we are resourced to work towards the greater accommodation and coexistence of an alternative way of thinking and learning about the law?
As a legal educator I have found that it is difficult work. Describing to non-Indigenous students the concept of an Aboriginal worldview is difficult, but so is the Aboriginal experience of colonialism, and apart from providing students with my perspective along with those of other Aboriginal guest lecturers, contact with Aboriginal community organisations and the extensive readings by Aboriginal writers, I still find non-Aboriginal students struggle to engage with the idea of a different view of the world and the Aboriginal experience of racism and colonialism. It is difficult for the non-Aboriginal student to engage because the Aboriginal question sits outside of any of their own experiences.
Perhaps it is difficult for the non-Aboriginal student to engage with ideas that sit outside their own experiences of white privilege. Yet difficulties experienced in communication across cultural, historical, political, and race boundaries is further compounded by the almost non-existent or at best minority status Aboriginal people occupy in the field of legal education. The opportunity for non-Aboriginal students to expand their horizons appears unlikely, particularly if the under-employment of Aboriginal academics teaching and researching in higher education is to continue. It is obvious that this imbalance could be corrected through the greater resourcing of academic positions that would enable the placement of Aboriginal peoples at the centre of the academic and research environment, thus providing the potential for a bigger voice to an Aboriginal way of exploring the world. My aim as a teacher is to reassert and reconstruct a different lens – one through which students can come to view knowledge and ideas. It has, however, been my experience that there are huge obstacles and blockades to the changing of the lens.
In looking forward, my own task is to resist assimilating or fitting into the dominant power structures and ‘ways of knowing’ while also offering non-Aboriginal students the opportunity to absorb or assimilate into themselves Aboriginal knowledge of this country. It is a difficult task; I have few resources to work with and a body of western knowledge that works against the centering of Aboriginal ways and knowledges as it posits Aboriginal peoples as pre-historic, native, without any formal knowledge system. The western knowledge system is supported by written documents, rules and regulations, and technological infrastructure. While Aboriginal knowledge exists alongside that western knowledge system, it is a non-formal, Aboriginal (local, traditional or ecological) knowledge system. The teaching of Aboriginal knowledge is problematic in that a different approach is called for. The teaching of Aboriginal ways from a book is not an effective teaching methodology as our ways are people- and land-centric, and this requires the body of those narratives for the effective conveyance of understandings. How do you bring the land and the people into the built environment? The very nature of Aboriginal knowledge and the capacity to learn and teach in this area is problematic as it poses a number of challenges to the academy and its built environment. Where, in the space of the academy, can we make contact with the land and its first peoples?
In laying out the challenge for expanding Aboriginal knowledge within the academy, I want to consider what then is the role of academics in legal education, in this sensitive area of Aboriginal knowledge. What is the ‘proper’ way of teaching? Is there a role for the non-Aboriginal academic? Is there a role for the Aboriginal academic, and how should those roles be determined? Can I, the individual even advocate for what that proper way might be? Or is the proper way one which follows tradition and culture and calls upon the community of traditional owners of place to determine the proper way? From my understandings, the latter question indicates the direction that should be taken.
The above questions are difficult challenges for the academy as the majority of the traditional owners/custodians of knowledge are located outside the tertiary sector. Many of the issues relating to the ‘sharing’ of Aboriginal knowledge are focused on ownership, control and protection of Aboriginal cultural and intellectual property. I see that Aboriginal academics can have a role in such dissemination, however that role needs to be delineated by those Aboriginal peoples who have a proper and rightful voice to speak for the country in which any particular university takes their occupation.
In reflecting upon what my role as an Aboriginal academic has been and could further grow into, given the opportunity and the resources to do so, would be to extend and expand our conversations about Aboriginal law and sovereignty within legal discourses. This project will remain marginal, however, while Australia’s legal and political systems fail to repair the damage caused by the legal history of terra nullius, whilst also continuing to ignore its duty to correct the foundational principles of Australian law which have left Aboriginal peoples with the onerous task of unmasking the illusion of Aboriginal recognition. That is, ‘recognition’ of Aboriginal title held to exist in the Mabo decision, one that is now entrenched in native title laws. For it is the illusion of recognition that currently fuels federal government policies, ones that fail to commit to Aboriginal calls to justice in the form of land rights and self-determination. For now the illusion of recognition that has been created gives the impression that Aboriginal peoples have achieved justice. But it is only an illusion. I see that it is my role as an academic to critically engage with the law, in the long and slow journey towards unmasking the illusion.
I had begun my studies in law 25 years ago to gain justice for our peoples, and sadly we have not moved forward. We have gone backwards, and it is this perspective I seek to convey to students. It is, though, a difficult idea to communicate because, before Mabo, most people knew justice had been denied to our peoples, now post-Mabo most people believe we have gained justice. We are still working for the same goal, land rights and self-determination, but we are also working harder than ever before, for now we are also working on unmasking the illusion; the illusion that ‘the blacks have got it all’. It is this un-truth we need to engage with critically in both our studies and teachings of the law.
Dr Irene Watson is a member of the Tanganekald and Meintangk peoples, first peoples of the Coorong and south-east of South Australia. Her work spans a 35-year history of Aboriginal activism, involving the ‘road map to peace’ in the face of the very desired recognition of land rights, self-determination and recognition of basic human rights for Aboriginal Peoples. This is a long, winding road; a continuing work in progress. Irene has written and spoken extensively within Australia and abroad on Indigenous issues, law, culture and justice. In particular, her work in the area of advocating for indigenous human rights involved participation and advocacy before the UN Working Group on Indigenous Peoples from 1990-1995. In 1996 Irene was appointed by the Chiefs of Ontario, Canada to sit as one of seven indigenous judges on the 'First Nations International Court of Justice'. Irene has recently self-published ‘Looking at you, looking at me’, 2002, a short history on the colonisation of the lands of her ancestors. Irene has also published and presented papers extensively on the topic of law and colonialism. Irene currently works for the Aboriginal Legal Rights Movement as a legal practitioner, and also lectures in law at the Flinders University Law School, South Australia.
This paper was originally a presentation given to the Kingsford Legal Centre Symposium, on Indigenous Legal Education, held on 15 November 2004, at the University of NSW.
 Mabo v State of Queensland (No 2)  HCA 23;  175 CLR 1.