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 email@example.com.
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