Hey Non-Indigenous Law Students: We've Got Some Shit to Sort Out

9/8/2016

SARAH MOORHEAD
Volume 10, Issue 3
Over the break, I interned at a native title representative body in Perth, working with lawyers who represented around 25 native title claimant groups in WA. And yep, the native title system is just as fucked up as I expected it to be.

For anyone who hasn’t taken Property, the test basically requires the group of Aboriginal or Torres Strait Islander people seeking native title to prove that they have a connection to the land that pre-existed white invasion and has continued since then to this day; that they observed laws and customs before invasion, continue to practise those laws and customs, and that the rights and interests under those laws are recognised by Anglo-Australian law.

Putting aside the enormous evidentiary difficulties in meeting this test, given the destruction of records and forced removal of Indigenous peoples from their land, its colonialist, racist premise is inescapable: Indigenous* peoples’ laws and customs are inferior to those of Anglo-Australia, legally impotent without the beneficent ‘recognition’ of the Anglo-Australian system. Although I got to meet traditional owners who had been successful in their claims, and it was wonderful to hear them talk about the positive consequences for their communities, hearing them talk about the violence done by the process itself cemented my view of the system.

On the 25th July, Four Corners released a program depicting abuse of Aboriginal children detained in the Don Dale juvenile detention centre. It was rightly described as awful and inexcusable. It was, as media sources including New Matilda have pointed out, less correctly described as ‘shocking’. The debate about the extent to which the Northern Territory government knew about this conduct will continue, and is set to be examined by a Royal Commission. From having (in another internship) worked on tort claims of false imprisonment of Aboriginal kids in juvenile detention, even I know that it’s ridiculous for the government to disclaim knowledge — but that’s not what I want to talk about here.

In native title law, the burden of proof is on the Indigenous claimants. This is a simple legal proposition, but it has a significance I hadn’t really realised before: it means that they are, by default, disbelieved.

Indigenous people have been reporting mistreatment at the hands of authorities for literally hundreds of years, including in recent decades when governments have purported not to be ok with racial abuse anymore. Nevertheless, it will take a Royal Commission — an institution of Anglo-Australian law proven ineffective in addressing Indigenous disadvantage at least once before — to render the reports legally consequential and legitimate. Indigenous voices are not believed by Anglo-Australian law. As countless Indigenous voices far more qualified than mine have stated, it is this default position of doubt that causes Anglo-Australian law (and society generally) to continue to marginalise Indigenous voices and erase Indigenous experiences.

I’m very aware that in writing this, I’m taking a platform that I am privileged to access, and reiterating arguments that have been made by Indigenous people whilst simultaneously denouncing their voices being spoken over. However, I just don’t think that recognising the need to foreground Indigenous voices is to say that I, as a white Anglo-Australian law student, have no role to fulfil. That would be an incredible cop out. Instead, all non-Indigenous law students and future practitioners have to acknowledge the colonialist foundations of our legal system and critically examine the ways in which its prejudice against Indigenous people continues.

We must question what it means to work in a system that expressly and systematically disempowers the peoples who pre-existed it in this country by millennia.

This is a hard thing to do. It’s hard and it’s scary and it makes me want to collapse under what feels like a mountain of shame and grief and guilt. But, this is the legal system in which I and all other MLS students have chosen to work. And that means that its shit is our shit to sort out.

Critique is only valid if its goal is progress. Revelations like the Don Dale abuse threaten to overwhelm with the enormity of what they say about our society. It is very, very hard to comprehend all the flaws and problems that lead to inequalities as enormous as that between Anglo- and Aboriginal Australia, and — at least for me — it’s even harder to know what to do about it as a white Australian law student. But I think that actually, that first step, the critique, is a source of hope: the more I come to understand about the development and nature of my legal system, the more I can start to think about what can be done to change it.† And the only way I’ll learn to identify the flaws in my law is to listen to Indigenous Australians. They know what has been and is being done to them, and they’ve been telling white Australia about it: it’s on us to start listening.

So please, if you haven’t really thought about this before (and I hadn’t, really, until a couple of years ago) do an Aurora Project internship. Take Encounters or Law and Indigenous Peoples. Apply your legal knowledge to think about what a treaty would mean. Read New Matilda and NITV, follow Warriors of the Aboriginal Resistance, Stan Grant and Celeste Liddle. Read the views of Melbourne University’s Indigenous students in Under Bunjil. This will help you understand what you can do (at least, it’s helped me), but it will also raise the platform of Indigenous voices to the forefront of Australia’s consciousness — where they ought and need to be, if we are to counter the prejudice that disbelieves Indigenous Australians’ rights to their own land, that leads to incidents like Don Dale.

*I’m using ‘Indigenous’ here to refer to both Aboriginal and Torres Strait Islander peoples. I do not intend this to erase the fact that the laws of Aboriginal and Torres Strait Islander peoples are unique and different to each other.

† Mega thanks to Ann Genovese and Mark McMillan: the first Encounters lecture crystallised these feelings into words and sparked this article.

Sarah Moorhead is a third year JD student. She is a committee member of both the Public Interest Law Network and Law Student for Refugees who have instituted “Pay the Rent” at their events, raising over $480 for the Rumbalara Football and Netball Club. Pay the Rent involves paying a voluntary contribution to an Aboriginal organisation or cause in recognition that, in lieu of a treaty with Aboriginal Nations, we meet and live on stolen land.

If you are interested in doing Pay the Rent and want some advice, please contact PILN at publicinterestlawnetwork@gmail.com.

The rest of this week's issue:

More articles like this:

Anonymous

9/8/2016 08:17:14 pm

Do your suggestions in this article apply to me if I am an Asian Australian?

Sarah Moorhead

9/8/2016 11:21:04 pm

Hi! Well, I think that they apply to anyone who's choosing to work and thus benefit from the Anglo-Australian legal system, because I think there's a responsibility that comes with profiting from such a flawed system. But on the other hand, it's a system that also disadvantages, or at least was not developed by, other non-white sectors of Australian society, so perhaps the obligation on those groups is less?

Thanks for the question, you raise a really good point - I guess this article was very much informed by my sense of responsibility as a white Australian, which is very much tied to my ancestry and race. I don't really want to speak to the obligation on Asian Australians, but I do think that the equation of profit = responsibility still applies.

I'd like to hear what you reckon!

John

10/8/2016 12:53:10 am

Is your proposed alternative that indigenous voices regarding native title be automatically believed as a default position?

Maybe the test is too strict, that's your opinion, but it can't be too soft either. Where is the sweet spot? I don't know. I think you object to the fact that a test is applied at all but the facts of history have led us to where we are and the supremacy of Australian law isn't going to be overturned at least in our lifetimes, if ever.

Duncan

10/8/2016 09:57:17 am

Well given it's Aboriginal land the burden of proof should be on the government or other non-Indigenous actors to prove that it's not Aboriginal land. Reverse the burden.

You clearly are uncomfortable with that proposition, but by any moral reckoning it's the only reasonable position to take.

After all, under the UN Genocide Convention, which Australia is a signatory to, the Australian government continues to commit genocide against Aboriginal people.

Colin Tatz, director of the Australian Institute for Holocaust and Genocide Studies, details that quite carefully in the following book, in case you're interested: https://www.monash.edu/__data/assets/pdf_file/0020/141554/tatz-essay.pdf

As such, Sarah's "opinion" that the test is too strict has some force behind it. We have some way to go until we hit the "sweet spot" you mention.

Indeed, debating where the "sweet spot" might be while the Australian government continues to commit genocide I personally find reprehensible.

10/8/2016 11:59:04 am

I don't actually feel morally obliged to give deference to a system or people who previously held supremacy over any given area. To do so would lead to absurd and frankly stupid results. England becomes Roman land, Turkey becomes Greek land, Islam is pushed back into a strip of land along the Red Sea coast as the entirety of North Africa and the Middle East become Christian lands, and so on.

And for that matter, the boundaries of the indigenous 'nations' have no doubt shifted over the course of their 40,000 year presence. Who is to say which has the greater claim to any given part of Australia?

If Australia ever did pursue a policy of a form of genocide, which it is arguable that it did, it is quite a stretch to say it continues to do so. Such extreme language likely only exacerbates tensions and is unhelpful.

11/8/2016 09:58:10 am

Your argument is bad even under Anglo-Australian law - Aboriginal people are recognised under Australian law as having supremacy over quite a lot of the Australian land mass - see Mabo lol.

I don't know where you got your idea from that genocide wasn't committed. I don't know where you got your argument that it is a stretch to say that the Australian government doesn't continue to commit genocide either.

I provided you with a definition of genocide - from the international genocide convention - and I provided you with a detailed account by the authority in the area (director of the Australian Institute for Holocaust and Genocide Studies) that the Australian government is currently committing genocide.

You might think it's unhelpful to label something as genocide - but that seems only to be the case because it's your government that is committing it.

A better approach would be to accept that genocide is currently occurring - as the evidence shows - and to support measures to stop it.

Anon.

11/8/2016 10:19:57 am

"by any moral reckoning it's the only reasonable position to take"

That's simply not the case. There are multiple tiers to the problem, and simply claiming your view is morally superior to any other view is a weak argument.

Provide an example of how the Australian Government continues to conduct genocide? Just because you cite a radical academic, and questionably interpreting the Convention doesn't make it so.

11/8/2016 10:29:51 am

I don't know why you think Colin Tatz is a radical academic.

You can find on page 15 of his book (which I linked), in the chapter "Australia and the Genocide Convention", details of how Australia continues to commit genocide.

11/8/2016 02:23:27 pm

I didn't say genocide was not commited, I said it was arguable that Australia did pursue a policy of a form of genocide, at least it is arguable that it did by interpreting the genocide convention.

I then said that it is a stretch to say Australia continues to pursue such a policy. I looked over the article you linked and it does not justify your assertion that Australia continues to conduct genocide, it details historical events up to about the 1960s, with some mention of the 2007 intervention which it does not characterise as genocide.

I also haven't taken propert yet but my understanding is that native title is quite weak even if you manage to pass the evidentiary burden spelled out by Sarah. As to the comments on Mabo affirming aboriginal 'supremacy' see my post below.

10/8/2016 10:48:52 am

I think the premise we don't acknowledge the colonial nature of Anglo-Australian law and that such law is wrong because it displaced Indigenous Australians' law is deeply flawed. Any first year law student is taught the origins of our law. Yes, there are a number of prominent examples where it has failed Indigenous Australians. But at the same time it has made great strides towards inclusion of Indigenous Australians' law. Mabo is one such example.

If you're going to come out and describe our legal system as "colonialist" and "racist" because there is an evidentiary threshold that is difficult to achieve, where does this place people such as myself, a second generation Greek-Australian, whose family arrived at a relatively late period in Australia's history? Indigenous Australians reclaiming "their own land" under a reduced evidentiary standard would run the very real risk of marginalising the remainder of the community, something that would only widen the gap between our societies.

Moreover, if you're going to use terms such as "invasion" to describe the events of 1788, then "conquest" is an inevitable corollary of the events that followed. Neither is helpful; nor is wholesale writing off "white" Australia as responsible for past wrongs due to your own "shame and grief and guilt".

11/8/2016 10:23:31 am

Given that Aboriginal people in Australia are one of the most marginalised groups in the world - in fact, Aboriginal people are the most incarcerated race on earth - your suggestion that reducing the evidentiary burden on Indigenous Australians will lead to a marginalisation of the remainder of the community is laughable.

What it might achieve is justice for Indigenous people in Australia. The idea that it would marginalise the rest of the community is just ridiculous.

You say that any first year student is taught the origin of our law, and you cite Mabo. You then go on to say that "invasion" is unhelpful to describe what occurred in 1788. But that is exactly what Mabo found - that Australia is invaded. This is an excellent example of the failings of our legal education that you can get taught Mabo and not realise that the High Court found that Australia was invaded.

Indeed, during PPL we spent a good deal of time pondering whether Australia really was independent of Britain under the Australia acts.

We did not ponder, however, the legitimacy of the Australian government under international law. International law recognises the sovereignty of a government over a new territory if that territory is settled, or if it is ceded through a treaty with the local inhabitants.

Is Mabo found, Australia was not settled. And there is no treaty with Indigenous people.

There is therefore no legal basis under international law for the legitimacy of the Australian government. It's strange that almost no law student knows that.

We simply are not taught about the origins of our law lol.

Anon

11/8/2016 11:11:42 am

You claim we aren't taught about the origins of our law, then cite exactly how we were taught.

With respect to the methods of territorial acquisition, applying post-1945 rules to the 18th century doesn't work well. Concluding there's no legitimacy to the Australian Government based on this argument is a Marxist falsehood.

Finally, arguing one wrong should be offset with another is similarly troubled. Criminal and property law no doubt hold a causative relationship in some parts of Australia, but suggesting a reverse burden or proof would provide justice for Indigenous Australians without marginalising any other groups fails the sniff test.

11/8/2016 11:45:34 am

You're right - I cited exactly how we are taught, and we were not taught about the origins of our law.

The rules I cited were in place in the 18th century.

I don't know why you brought up Marxism. I don't like Marxism.

Can you tell me how this sniff test works? Do you have any evidence that reversing the burden would marginalise other groups? The same argument was made when Native Title became a thing - there was massive hysteria about how everyone was going to be marginalised. This turned out not to be true in the slightest.

The evidence is against you. You should redo the sniff test - whatever that is.

11/8/2016 02:12:58 pm

You must have missed the part in Mabo about skeletal principles. It was explicitly stated in Mabo that the fact that Australia was not Terra Nullius did not negate the arrival or continuing application of English law or address the question or sovereignty.

The conclusion you draw is a logical one; no terra Nullius means no 'settlement' which means Australia had to be acquired some other way, but this is at odds with what is actually in the judgements.

If this sounds inconsistent, it is, but so was the judgement itself, which overturned clear precedent not on the basis that Aboriginal communities were not extremely low on he scale of political and social organisation, which was the test under the enlarged notion of Terra Nullius, but because of a change in community attitudes, and justified legally by deferring to the west Sahara case.

Jackie Chiles

10/8/2016 02:04:56 pm

A few issues with this article...

You are correct in observing that the status quo of burden of proof marginalises some people.
However there are no solutions here aside from the proposition that legal practitioners need to be aware of and committed to indigenous issues. This is empty.

Awareness of a problem may indirectly bring about a solution, but it is a lazy form of advocacy. In writing this you are contributing in a way only marginally better than those who do nothing

"Critique is only valid if its goal is progress." ... Really? ... What an empty remark.

Firstly, it does not follow. And secondly, for the purposes of disregarding critique... what is progress?
One can progress backwards, or forwards.

I hope that we can have progress on indigenous issues that leads to greater equality in quality of life with other Australians in the future. This article doesn't contribute to this at all.

Honestly? It reads like someone who was outraged by the four corners report and then wrote an empty article to seek attention to themselves through de minimis

Henry HL

18/8/2016 03:43:56 pm

If this article doesn't contribute to anything, and so shouldn't have been written, what is your comment on this article contributing to? Substantially less than nothing, it seems. Shouldn't you have stayed silent by your own logic?

11/8/2016 10:15:21 am

This article is an example of why we aren't seeing Indigenous Australians life outcomes improved at the rate they should be. Indigenous Australians have an unnecessary problem caused by white, middle-class activists' antagonism and detachment from reality.

Rational, calm analysis is nowhere to be seen, instead every and anyone who fails to support in tearing down the system (whether they agree with you or not) is an extremist enemy. No wonder things are so bad.

Critically examine your own position before passing judgment on the rest of us, Sarah.

18/8/2016 03:47:34 pm

You know, for someone extolling the virtues of 'rational, calm analysis', your comment is remarkably lacking in it.

What is this unnecessary problem created by activists? Exactly where did Sarah say all those who disagreed were 'extremist enemies'? What is this 'calm, rational analysis' that would ride to the rescue but for us self-righteous SJWs?

11/8/2016 12:11:38 pm

There's good "rational calm analysis" made by Aboriginal scholars about the problems caused to Indigenous Australians by white middle calss activists: http://www.kooriweb.org/foley/essays/essay_9.html.

Indeed, Sarah is acting exactly as Dr Foley recommends - taking on some of the burden of educating the wider public about the problems with mainstream discourse and assumptions.

You seem to be suggesting, though, that all the problems Indigenous Australia faces are caused by white middle class activists. Given this is the week after the Australian government was shown to the wider public to be torturing Indigenous children, it's you who seems to be wholly detached from reality.

11/8/2016 03:38:17 pm

Great article. Helpfully brings up the issues with no legitimate attempt to solve any of them.

Please do write another piece next week addressed to all non-Jews, focusing on the pogroms and expulsions from medieval to Renaissance Europe, culminating in the events of 1939-1945. Appreciate it.

18/8/2016 03:55:46 pm

"So please, if you haven’t really thought about this before (and I hadn’t, really, until a couple of years ago) do an Aurora Project internship. Take Encounters or Law and Indigenous Peoples. Apply your legal knowledge to think about what a treaty would mean. Read New Matilda and NITV, follow Warriors of the Aboriginal Resistance, Stan Grant and Celeste Liddle. Read the views of Melbourne University’s Indigenous students in Under Bunjil. This will help you understand what you can do (at least, it’s helped me), but it will also raise the platform of Indigenous voices to the forefront of Australia’s consciousness — where they ought and need to be, if we are to counter the prejudice that disbelieves Indigenous Australians’ rights to their own land, that leads to incidents like Don Dale."

Comments are closed.