Teaching Indigenous legal issues as a non-Indigenous teacher: Stories and perspectives

Abstract

This short article suggests some ways for non-Indigenous law teachers to teach Indigenous legal issues in a culturally sensitive and respectful, as well as intellectually satisfying, way. It sets out five problems, or issues, which students have commonly raised in class, including the discussion of past racism, the disturbing nature of the content, and the question of whether these discussions further alienate, or ‘other’, Indigenous peoples. It suggests some strategies for dealing with these issues, including through the use of storytelling techniques and the acknowledgement of subjectivity.

This short article suggests some ways that non-Indigenous law teachers might teach Indigenous legal issues in a culturally sensitive and respectful, as well as intellectually satisfying, way. ¹ These suggestions come from the perspective of a non-Indigenous person who has taught Indigenous legal issues for over 25 years, both as components of other law units and as ‘stand-alone’ elective units, and in a small regional city (Charles Darwin University), as well as a large capital city, at Monash University in Melbourne. The article gives some examples of the kinds of problems that have arisen for me, particularly in more recent years, as the parameters of debate have changed, and issues of identity and voice have become more significant. I am writing these observations with some reservations, and a certain (despite these years of experience) lack of confidence, which I suggest largely mirrors a lack of confidence ² among many non-Indigenous law academics who seek (or are asked) to help instil ‘Indigenous cultural competence’ among their students more generally. ³

At its simplest, the suggestions involve working with the material while letting the ‘objective’ stance of the traditional law academic drop, ⁴ to the greatest extent possible. It requires acknowledging subjectivity through storytelling, in a way that is as consistent as possible with and respectful to Indigenous storytelling methods. ⁵ This involves, hopefully, an exercise in humility which also implies paying respect to Indigenous perspectives. Clearly, as Galloway explains, a ‘non-Indigenous law teacher cannot, by definition, provide Indigenous knowledges, perspectives or experiences first hand’. ⁶ Nor can their own experiences be equated with an Indigenous perspective. Nevertheless, I hope this teaching approach can be a small exercise in decolonisation, or anti-racism, ⁷ rather than (as is still all too frequently the case) a perpetuation of colonial perspectives.

The issues I have encountered in trying to teach ‘Indigenous legal issues’ are both real and imagined. They are real, in the sense that they are distilled from comments students have actually made to me, either directly or in student evaluations. They are imagined, in the sense that an academic rarely knows what students are thinking, as the academic is speaking to a class, particularly where it is raw or politically sensitive. As a result, teachers might be inhibited by imagining reactions which may not exist. Whether they are real, or imagined, does not in a sense matter to the academic. What matters is that the teacher feels equipped to discuss Indigenous legal issues in a way which is both confident and not lacking in respect.

I am directing these observations specifically to non-Indigenous law teachers. This is for several reasons. First, the issues facing Indigenous law academics have been discussed elsewhere. ⁸ Second, I am not qualified to speak with authority about issues facing Indigenous academics. Third, Indigenous academics have asked non-Indigenous academics to learn and speak about Indigenous legal issues. ⁹ Finally, Indigenous cultural competency (ICC) is a measure recommended by Universities Australia and the Australian government across the higher education sector, ¹⁰ as well as being a recommendation of the Council of Australian Law Deans (CALD), ¹¹ and part of official policy at many, if not all, Australian law schools. ¹²

I also assume that the majority of students in the class will be non-Indigenous. This reflects the fact that Indigenous people are still under-represented in Australian law schools, although their participation is growing. ¹³ It is, however, of the utmost importance that the teacher is aware that one or more of the students in the class may be Indigenous (quite possibly not wishing to identify themselves publicly as such), and that they are likely to face issues outside the class that are very different to those facing most of the non-Indigenous students, ¹⁴ as well as being likely to react very differently to the material being discussed. ¹⁵

One further preliminary observation: by ‘Indigenous legal issues’, I mean primarily a study of the role of the Anglo-Australian law in the dispossession and oppression of Indigenous people, as well as of its use by Indigenous people and their supporters to advocate for their rights. ¹⁶ It should also include some introduction to Indigenous law. ¹⁷

Common concerns in teaching Indigenous legal issues

Here, then, are five criticisms that have been levelled at me as a non-Indigenous teacher of Indigenous legal issues, and some suggestions for dealing with them.

The lecturer did not use the correct term for Indigenous peoples

While there are many terms that are obviously incorrect, outdated or racist, there is no single ‘correct’ term to describe Indigenous people in Australia. Even the term ‘Indigenous’, which I have used here, is not universally accepted. As most lecturers and students would be aware, Indigenous people in Australia belong to many different groups. Thus, as Nettheim and McRae point out, it is

an error to speak of the people of the Australian mainland and Tasmania, and adjacent islands, as a single people. … The Aboriginal peoples themselves had no single word to indicate all the Indigenous peoples of Australia, though there are some terms with wide regional currency, such as Koori or Murri. ¹⁸

Nettheim and McRae’s book, the first edition of which was central in establishing ‘Indigenous people and the law’ as a field of study for Australian law students, ¹⁹ and which continues to provide a thorough map of that field, uses the terms ‘Aboriginal’ and ‘Indigenous’ throughout. ²⁰ More recently, significant texts on the subject written or co-authored by Indigenous authors also refer to ‘Indigenous’ systems of law. ²¹

It is worthwhile acknowledging and discussing issues of language and terminology with a class early on. Students may have been told different things, or may have come across different ‘authoritative’ sources of information. For example, in support of the (incorrect) idea that ‘First Nations’ is the ‘proper’ term, I was recently referred to the Australian Government Style Manual, ²² which points out the importance of consultation protocols and respect when referring to Indigenous peoples. While this is quite true, the historical role of the Australian government in colonisation and dispossession makes an official government style manual a questionable source of authority, at least for anything other than ‘official’ government publications. In fact, for strong historical and cultural reasons, the search for any single correct term is likely fruitless. ²³

However, for a law class, I generally use the term ‘Indigenous people’ or ‘peoples’, because this is the accepted term under international (not Australian) law. Indigenous people have particular rights by virtue of that status under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). ²⁴ The UNDRIP is often relied on by Indigenous people advocating for their rights, for example after the unsuccessful Voice referendum. ²⁵

Why isn’t this subject taught by an Indigenous person?

This is a good question! It is one I am increasingly asked by my students, who are aware of issues of Indigenous voice and identity. Up to a point, they are absolutely right. In an ideal world, an Indigenous person would teach them about the effects of colonial and post-colonial law on Indigenous people, from the point of view (or at least, one of the points of view) of those most affected.

However, another part of the answer is that I am not purporting to teach or speak from an Indigenous person’s perspective. The class and course is specifically about the Anglo-Australian law – how that law has been used to the detriment, and occasionally for the benefit, of Indigenous people. It is a law subject, its scope roughly correlating with the topics covered in the major texts such as that by Nettheim and McRae. ²⁶ As such, it requires a precise and careful study of non-Indigenous law. For example, in teaching the topic of the ‘Stolen Generations’, I do not spend the majority of the class describing the awful and continuing effects of the Stolen Generations policies on generations of Indigenous people, although it is of course of utmost importance to acknowledge these effects and refer to readings about them. However, the focus of the class is on analysing the reasoning of the judges in the major ‘Stolen Generations’ cases. ²⁷ This is on the basis that a close understanding of this reasoning best equips students with the tools to advocate for Indigenous clients or legal changes in the future. Students have to understand what they are trying to critique, in all its technical detail and awful or awe-inspiring machinery.

But the objection still remains – why is an Indigenous person not teaching this material? It is an objection I have received reasonably often from non-Indigenous students, particularly in the last few years, but never – so far as I am aware – from an Indigenous student. The answer to the question is embedded in who is making the objection. As Cubillo points out, ‘[w]hile the number of Indigenous legal academics is growing, it is not presently feasible that all classes on Indigenous content are taught by Indigenous people.’ ²⁸ And, as Wood and Watson note, Australian law faculties are still not friendly places for Indigenous academics, and the expectations on them are great, including ‘tasks outside of conventional academic workloads, such as support to Indigenous students, community outreach, and assistance to colleagues who aspire to include Indigenous content in their courses.’ ²⁹

Asking Indigenous people to teach classes dealing with Indigenous issues is a significant burden on them, particularly where the request comes with an expectation that their perspective will make the class more ‘authentic’, or that the individual involved has the knowledge and confidence to speak about the issue with authority. The emotional burden on the Indigenous individual may be significant, and compounded by the real possibility that they may encounter hostility or racism from non-Indigenous students. ³⁰ Such a request may, in fact, be seen as a sign of disrespect or ‘colonial thinking’. ³¹ Rather than being constantly asked to educate non-Indigenous people about the issues, Indigenous people have, instead, asked for ‘critical allyship’ or an anti-racist stance: that is, for non-Indigenous people to take on some of the burden of educating others, educating themselves in the process. ³²

Of course, the perspectives of Indigenous people will enrich any class. However, the lecturer and students need to be aware of the likely emotional cost of asking them to do so, and particularly avoid an expectation that they be asked to ‘guest lecture’ for free. ³³ As well as seeking the perspectives of Indigenous people where possible and appropriate, a non-Indigenous lecturer should encourage students to read and learn as much as they can about Indigenous law, for example by reading the recent text by Langton and Corn on the subject. ³⁴ This material should be incorporated into the curriculum of the subject (including by being made examinable), not just seen as an optional extra to be read ‘if you have time’.

The language used is racist

This objection does not (usually) mean that the lecturer is using derogatory or racist language to refer to Indigenous people. Rather, it is an objection to the in-class repetition of racist language which was historically used in law and colonial practice to refer to Indigenous people. However, the two are sometimes conflated.

In a 36-hour course on Indigenous legal issues, I would usually spend two to three hours on history, and three to four hours on the Stolen Generations and Stolen Wages issues. Both these topics require at the least reference to, and hopefully understanding and analysis of, legislation which governed the lives of Indigenous people from the late 19^th century until at least the 1960s, including particularly the legislation which was analysed in the well-known ‘Stolen Generations’ cases. ³⁵ This legislation used racist language to categorise Indigenous people, with powerful, indeed catastrophic, legal and social effects. ³⁶

How should this topic be discussed in class? Certainly, the discussion could come with a trigger warning, although there is debate about the efficacy and desirability of such warnings. ³⁷ It should be prefaced with some discussion about the fact that the language used in the statutes is racist, and may not only cause distress to Indigenous students, but also some distress and shame to non-Indigenous students with sensitivity to the damage the policies encased in this language caused. It is a difficult discussion, and regardless of what is said or how the discussion is pursued, the potential for distress remains.

While all this must be acknowledged, none of it is a reason to avoid teaching this material. It is critical to an understanding of Australia’s history with Indigenous people. This history has always been swept under the carpet, or into the cupboard, where it has festered, manifesting in the ‘great Australian silence’ about Indigenous issues identified decades ago by anthropologist W E H Stanner, ³⁸ in the ‘terra nullius’ policies only partially rectified in the Mabo decision, and more recently in the darker corners of the internet and the historical ignorance which destroyed the Voice campaign. If the generations of policy failures in Indigenous issues are ever to be reversed, it is essential that Australians are better educated about history – and absolutely essential to that is an understanding of the way Indigenous people were treated in the past, in particular by the law.

I found the content distressing. There were no (or no adequate) trigger warnings

This objection is closely related to the previous one. I have referred to some of the literature on trigger warnings above. The issues related to such warnings are similar in some respects to those facing teachers in other law units, most obviously criminal law and sexual offences. Whether trigger warnings are used is, or should be, a decision for the individual lecturer, although universities may have ‘official’ positions on the issue. Even where such warnings are used, students may object that they missed the warning, or found the material confronting anyway. More important than the use or otherwise of a warning is the context and framing of the overall discussion.

Another example of content students have found distressing has been discussion of Indigenous customary law. Normally, I would begin the discussion by saying that, as a non-Indigenous person, I have no expertise or authority to speak about Indigenous customary law. Rather, I outline what others have said about the topic, particularly Aboriginal people as well as non-Indigenous observers. ³⁹ After that, I move to a discussion of the various ways non-Indigenous law has dealt with matters of Indigenous customary law, when they have arisen before policy-makers or the courts. It is crucial to foreground this discussion by saying that Indigenous people have repeatedly, and for many decades, stated that they consider an official recognition of their customary law to be a central element of self-determination. Nevertheless, beyond this point, the discussion can become difficult.

An important part of my experience has been in the Northern Territory (NT), where issues of customary law were frequently raised before the courts, and where they became particularly controversial in the few years leading up to the Northern Territory Intervention in 2007. ⁴⁰ The NT Law Reform Committee, of which I was a member, examined the issue in its report of 2003. ⁴¹ Following this, there were two cases in which Aboriginal men raised customary law as defences to rape or other sexual offences committed against under-age women, in circumstances which were widely reported, setting a tone of public debate which was highly unfavourable to Aboriginal customary law. ⁴² Thus, a study of the pronouncements of non-Indigenous law on the status of Indigenous customary law tends to focus on the ‘flashpoints’, or circumstances of conflict. Those flashpoints can obscure the far broader corpus of Indigenous customary law, the vast majority of which does not at all concern such controversial cases.

Rather than trying to make ‘objective’ statements about what Indigenous customary law does or does not permit, I use storytelling to engage students with issues. I talk about my experiences sitting on the NT Law Reform Committee, in which senior Indigenous women gave evidence that they wanted to see customary law recognised by non-Indigenous law, including that part of it which related to promised marriages. At the same time, one of the very senior women told the Committee that she had been ‘promised’ as a young girl but had run away from that marriage and formed a relationship with somebody else. I also point out that the Committee (unknown to the women giving evidence, or to any of the Indigenous witnesses as far as I know) was prevented by its terms of reference from making any recommendations which might be contrary to anything contained in the NT Criminal Code. ⁴³ I also refer students to cases and articles dealing with the issues, and leave them to read and make up their own minds on the issues. ⁴⁴ It is also important to point out that Indigenous customary law in one part of the country may be quite different to the customary law in another part.

The content further alienates (or ‘others’) Indigenous peoples

I find this the most difficult issue to address. It is difficult even to articulate clearly because it concerns what Galloway terms ‘foundational questions of power and justice in the law as well as in the classroom.’ ⁴⁵ In part, it is a criticism of ‘knowledge based approaches’ to teaching law and Indigenous cultural competency, ⁴⁶ including the assumption that Indigenous cultures are static and homogenous, or that competence is an achievable endpoint. It is also a criticism of ‘stereotyping by using broad population-level data’, as well as ‘disempowering Indigenous people by labelling a population as disadvantaged.’ ⁴⁷

Burns discusses the issue of power in more detail, noting arguments that ‘ICC’s focus on the “other” whilst maintaining whiteness as the “locus of normalcy”, carries the assumption that “learning a group’s history is seen as sufficient, with little need to strive for social justice to eliminate oppression.’ ⁴⁸ Not only is learning about history and disadvantage insufficient, it also has the potential to further entrench a subtle and structural form of racism, for example if it involves teaching Indigenous legal issues as a set of deficits or problems suffered or possessed by Indigenous people, as opposed to the ‘normal’ whites. ⁴⁹

This is a difficult criticism for me to absorb and meet. I have traditionally taught ‘Indigenous legal issues’ as, indeed, a set of problems. The ‘Closing the Gap’ and successive strategies are intended to ‘solve’ the problem of Indigenous disadvantage. The Stolen Generations and Stolen Wages policies have created a legacy of disadvantage, compounded by the failure of the major cases on the issues. Criminalisation and over-incarceration are longstanding problems to be rectified, if possible, by changes in policies and law. Native title is a problem to the extent that it is not recognised in a way consistent with Indigenous aspirations, and because many of the major cases in the area have failed. Constitutional change and the Voice proposals have failed. The list goes on – and students risk coming away from the course not only depressed at the failure of so much litigation and legal policy in this area, but with the impression that Indigenous policy and Indigenous people themselves present a set of intractable problems, an endless story of failures – the ‘torment of our powerlessness’, as the Uluru Statement observed. ⁵⁰

How can this issue be addressed? It should not be done by eliding, ignoring or skating over the failings of policy and law. Galloway comments that, after learning ‘that no one had an “answer” for the “problem” [she] was encountering’, she ‘intentionally became teacher-as-researcher’, trying to implement an approach that was ‘social, participatory, practical, emancipatory, critical, reflexive, and with the goal of transforming theory and practice.’ ⁵¹

While this may seem a tall order, particularly while still teaching the legal detail I’ve referred to above, I suggest the best answer lies in an approach which is ‘self-reflexive’ and autobiographical, while hopefully infused with ‘cultural humility’. ⁵² It does recognise that Indigenous cultural competence is a ‘journey not a destination’, ⁵³ for the lecturer as much as the student. It requires, as stated above, dropping the ‘objective’ stance as far as possible, acknowledging subjectivity and lack of knowledge, and talking instead more explicitly from your own experience and point of view.

I can remember being corrected, early in my teaching career, by an Indigenous student over my pronunciation of ‘Mabo’ (I had pronounced it ‘May-bo’). I remember also the two male students, one Indigenous, the other a white guy from country Victoria, who came to class one day having had a fist fight the night before over Pauline Hanson. The white guy had opposed Pauline Hanson’s policies, the Indigenous guy had supported her. Indigenous students may become corporate lawyers, or go to the UN. ⁵⁴ People do not always do or think what you might expect; identity does not determine pathways in career or life.

This, as much as anything in policy or law, is a source of hope.

Conclusion

The best way to instil that hope into students is to be prepared to step into this difficult arena, recognising that you (along with everybody else) are not likely to be expert in the field. This approach requires ultimately more than the intellectual knowledge characteristically taught in law units, while by no means being deficient in that type of knowledge; it also means accepting that fear and vulnerability is part of the journey. While the Voice referendum failed, there are many other ways for Indigenous people to express their voices. One of them is through dissemination of knowledge about Indigenous law expressed in texts written by Indigenous people on the subject. ⁵⁵ Another is by speaking with students about the ways Indigenous people have protested or struggled for their rights. ⁵⁶ Overcoming the ignorance of non-Indigenous Australians about Indigenous history has always been central in overcoming the ‘cult of forgetfulness’ epitomised in the terra nullius doctrine. In the post-Voice landscape, where Indigenous voices risk being buried once again, it is as crucial as it ever has been.