2016 has been off to a busy start at the Indigenous Law Centre. New editions of both the Indigenous Law Bulletin and the Australian Indigenous Law Review have been published, Professor Megan Davis has a new book coming out, the redeveloped Indigenous Law Resources database was launched in March, and the Centre is host to four student interns.
Keep reading for more on our activities and upcoming events, as well as a special 'Spotlight On' Centre Associate Lauren Butterly.
– The ILC Team
It's Our Country, edited by Megan Davis and Marcia Langton, available tomorrow
Why should Indigenous people have a direct say in the decisions that affect their lives? Australia is one of the only liberal democracies still grappling with such a fundamental question.
The idea of constitutional recognition of Indigenous Australians has become a highly political and contentious issue. It is entangled in institutional processes that rarely allow the diversity of Indigenous opinion to be expressed.
With a referendum on the agenda, it is now urgent that Indigenous people have a direct say in the form of recognition that constitutional change might achieve.
It's Our Country: Indigenous Arguments for Meaningful Constitutional Recognition and Reform is a collections of essays by Aboriginal and Torres Strait Islander thinkers and leaders, including Patrick Dodson, Noel Pearson, Dawn Casey, Nyunggai Warren Mundine and Mick Mansell. Each essay explores what recognition and constitutional reform might achieve—or not achieve—for Indigenous people.
UNSW Law Book Forum: Beyond Communal and Individual Ownership
When: Wednesday 4 May 2016, 4 to 6 pm Where: Staff Common Room, Level 2, UNSW Law School
About the book
Over the last decade, Australian governments have introduced a series of land reforms in communities on Indigenous land. This book is the first in-depth study of these significant and far-reaching reforms. It explains how the reforms came about, what they do and their consequences for Indigenous landowners and community residents. It also revisits the rationale for their introduction and discusses the significant gap between public debate about the reforms and their actual impact.
Drawing on international research, the book describes how it is necessary to move beyond the concepts of communal and individual ownership in order to understand the true significance of the reforms. The book's fresh perspective on land reform and careful assessment of key land reform theories will be of interest to scholars of Indigenous land rights, land law, Indigenous studies and Aboriginal culture not only in Australia but also in any other country with an interest in indigenous land rights.
About the event
Chair: Sean Brennan (UNSW Law) Author: Leon Terrill (UNSW Law) Readers: Associate Professor Tess Lea (Sydney University); Professor Lee Godden (Melbourne University); and Nicole Watson (Sydney University).
Wine and light refreshments will be provided.
The event is free of charge, but you are kindly requested to register attendance here.
Dr Leon Terrill, author of Beyond Communal and Individual Ownership
Student Interns at the Indigenous Law Centre
Semester 1 has seen four UNSW Law students undertake internships at the ILC: an ILB Student Editor, an AILR Student Editor and two Social Justice Interns. Here, they tell us a little bit about themselves, and their internships.
I am a proud Yuin woman from the South Coast of New South Wales. I am currently in my fifth year of a dual Arts/Law degree at UNSW. I choose to study this degree because my passion lies in social justice and helping to address the issues that affect our Aboriginal communities. I am currently the Student Editor for the ILB and it has been one of the most rewarding experiences.
Since being the Student Editor, I have edited articles; conducted research for articles or potential topics; created Q&A questions; researched and written the 'Months in Review' column; assisted with layout decisions; and worked on the online version of the newsletter. Those are just some of the activities that I have had the opportunity to work on. For any students who are thinking about applying, are passionate about Indigenous legal issues or would like the opportunity to improve their legal research or writing skills—this is the place you should aim to be.
The opportunity to assist dynamic voices in the contemporary discussion of Indigenous issues as Student Editor of the AILR is proving invaluable. The internship allows me to grapple with some of the particular legal pressures affecting Indigenous peoples in Australia, while refining my editorial skills and fostering an understanding of the publication process that underpins the AILR. As I progress through my final year of study, the AILR has crystallised in my mind the importance of elevating understated discourses.
I am a fifth year media/law student enjoying my time as a Social Justice Intern at the ILC. With previous experience in a commercial law firm and a startup law firm, working at the Centre in a research capacity has shown me a completely different aspect of the legal profession, and has allowed me to further develop my interest in Indigenous legal issues.
I'm a Social Justice Intern at the ILC, where my role is to research Indigenous issues to find trends and injustices in law and policy. Not only does my work generate awareness and discussion of Indigenous matters among academics, legal practitioners and human rights activists, but in doing so, my research has the potential to lead to reform. It is a great learning experience at the ILC where I have developed and refined my legal research skills, and it feels good to know that I am making a real and positive difference in the world.
Spotlight On: Lauren Butterly
ILC Centre Associate, ANU Law Lecturer and PhD Candidate at UNSW Law
Lauren Butterly, ILC Centre Associate
The 'Spotlight On' series will focus on the ILC's Centre Associates, in order to highlight
the work they are doing for the Centre, in their research and in the Indigenous space.
Our first Associate to go under the 'Spotlight' is Lauren Butterly.
Lauren is a lecturer at the ANU College of Law, where she researches, publishes and teaches in administrative law, public law, native title and Indigenous peoples and the law. Lauren is also a PhD candidate at UNSW Law, where her research explores Indigenous governance of Sea Country using innovative empirical research techniques to look at the variety of different mechanisms available to govern the coastal marine environment.
Since becoming an ILC Associate in 2013, she has served on the ILB Editorial Board, published in and supported the AILR, attended a number of conferences representing the Centre and, most recently, co-convened the inaugural interdisciplinary workshop in Indigenous Peoples and Saltwater/Freshwater Governance. Lauren has also provided expert research assistance to ILC Director Professor Megan Davis in her role as Chair of the United Nations Permanent Forum on Indigenous Issues.
Lauren’s work focuses on the intersection between Indigenous rights and environmental law. This intersection includes expertise in native title, mining law, cultural heritage law, coastal marine law, international law and administrative law. Further, Lauren’s work is broader than just ‘law’ and considers Indigenous legal systems and Indigenous research methodologies. Because she grew up in Western Australia, Lauren is a keen advocate to ensure important WA issues are raised and debated, which is vital to the Centre.
Lauren holds a Bachelor of Arts specialising in Indigenous history and a Bachelor of Laws with First Class Honours, both from the University of Western Australia. Following graduation from UWA, Lauren served as the Principal Associate to Chief Justice Wayne Martin of the Supreme Court of WA and after her Associateship, practised as an environmental law solicitor at a national law firm in Sydney before taking an academic appointment. A full list of her publications can be found here.
Indigenous Peoples and Saltwater/Freshwater Governance for a Sustainable Future workshop
As mentioned above, Lauren recently co-convened, with Professor Ben Richardson from the University of Tasmania, an interdisciplinary workshop, 'Indigenous Peoples and Saltwater/Freshwater Governance for a Sustainable Future' which brought together Indigenous and non-Indigenous researchers, lawyers, policy advisers, scientists and natural resource manages from Australia and around the world.
The workshop consisted of individual papers, break-out discussions, a roundtable and a networking dinner. The workshop also hosted two exceptional keynote speakers: Professor Jacinta Ruru of the University of Otago, and Dr Virginia Marshall, a lawyer and the first Indigenous woman to gain a PhD in law at Macquarie University.
Articles based on a selection of the papers and discussions from the the workshop will appear in an upcoming special marine and freshwater edition of ILB, which Lauren and Professor Richardson are co-editing, to be published in August.
Professor Jacinta Ruru from the University of Otago presenting at the Indigenous Peoples and Saltwater/Freshwater Governance for a Sustainable Future workshop
Untangling a new era of land rights: review of Beyond Communal and Individual Ownership
'The land rights debate has entered a new era,' starts Dillon, 'and Leon Terrill is an informed and engaging guide.'
Dillon goes on to conclude:
'Beyond Communal and Individual Ownership provides the first comprehensive analysis and assessment of the third phase of Indigenous land rights. Leon Terrill has untangled what is, even for those with an interest in these issues, a tight knot of culture, history, demography, anthropology, federalism, bureaucracy, law and politics. It is a considerable achievement.
'What emerges is that the structural and institutional forces at work in remote Australia—the laws, the key organisations, and the intricate interplay of interests—shape and determine much more than is generally acknowledged. Moreover, the land reform process is still in flux. The directions of reform might be reasonably clear, but the details are not set in concrete and will be shaped for good or bad by the interplay of stakeholders and politics. The decisions reached will in many respects determine the shape of remote communities and the opportunities of their residents for decades to come.
'Beyond Communal and Individual Ownership provides us with an entry point into that policy space, a vision of the policy alternatives that might be pursued in the future, and an analysis of the issues that will need to be addressed and determined whichever course is adopted. This is a very substantial achievement in itself.'
The database is the result of a joint project of the ILC and AustLII and aims to increase the accessibility of rare, vulnerable and important Indigenous legal materials.
To date the free-access database contains more than 800 documents, dating from 1768 to 2015. The collection includes parliamentary papers, government reports and policy documents affecting Indigenous peoples, reports and submissions by civil society organisations and documents related to significant test cases and legal proceedings. Particularly noteworthy inclusions are previously undigitised resources relating to discrimination, intellectual property, cultural heritage, land rights and native title.
The project, which has been supported by two UNSW Major Research Equipment Infrastructure Initiative (MREII) grants in 2015 and 2016, has now entered its second phase and will continue until the end of this year.
Material for the database is being identified and sourced with the generous assistance of a number of organisations, individual experts and libraries. If you would like to provide materials for digitisation or inclusion in the library, please contact Stijn Denayer at firstname.lastname@example.org for more information.
Batiba Guwiyal 'Extinguish the Flame' Indigenous Child Sexual Assault Conference
In March, ILC Deputy Director Dr Kyllie Cripps attended the Batiba Guwiyal 'Extinguish the Flame' Indigenous Child Sexual Assault Conference in Brisbane. The conference, hosted by Carole Vale, the managing director of Murawin, was an opportunity to hear and reflect on the collaborative efforts to tackle the impacts on child sexual assault on Indigenous individuals, families and communities. Three action-packed days witnessed the exchange of information between Aboirginal and Torres Strait Islander people, service providers, researchers and academics, practitioners and professionals, and policy-makers on the nature and extent of child sexual assault, the challenges of responding to the problem and how to do so holistically and in a way that recognises that the impact of sexual assault is far reaching.
Dr Cripps presented her paper, Indigenous Sexual Assault: Implications for Law, Policy and Health, on the final day. Her paper was well received and copies of her presentation can be access here.
'Public policy no longer requires the imprimatur of the Aboriginal people; Aboriginal participation in the decisions taken about their lives is negligible. It is a distraction, an indulgence even. Desperate pleas for a renewed emphasis on Indigenous design and Indigenous participation are met with the unexamined refrain, "We tried that and it didn’t work". A mostly uncritical mainstream media cheers from the sidelines, dutifully promoting prime ministerial remote-community fly-bys as policy and gushingly retweeting images of unnamed natives: state-funded junket as "the coming of the light".'
Dr Kyllie Cripps on the Victorian Royal Commission into Family Violence final report
'The Victorian Royal Commission into Family Violence’s final report recognises the disproportionate rate of family violence in Indigenous communities. Aboriginal Victorians are nearly eight times as likely to be involved in a family violence incident involving police than non-Aboriginal Victorians and the rate is increasing.
'Testimony to the commission made it clear that few Aboriginal families were immune to the trauma, despair and damage resulting from family violence.'
ILC Celebrates Historic Canadian Human Rights Tribunal Judgement
At the morning tea, the attendees discussed the significance of the decision in light of the many commonalities that exist between Australia and Canada in terms of Indigenous over-representation in the child protections system. Participants also discussed how they as researchers can better support legal practitioners to bring test cases to test our system in a similar way to the victory in Canada.
Volume 18(2) includes both a general section and a thematic section on Australian Indigenous Constitutional Recognition. In the general section, Jonathan Liljeblad writes about the law's treatment of Indigenous Andaman Jarawa in response to concerns about cultural tourism. Clement Ng considers the position of young Indigenous female offenders in the justice system while Lily O’Neill, drawing from her PhD research, analyses some the reasons behind significant differences in the benefits provided under two major native title agreements. In the final article, Rob While discusses the use of a restorative justice approach in a recent NSW Land and Environment Court case where the environmental harm affected a particular Indigenous community.
The contributions to the thematic section add to the existing discussion of issues around constitutional recognition. The section begins with an article by the ILC's Megan Davis, in which she puts the need for substantive reform in context by clarifying the ways in which currently Australia is exceptional: we have neither enshrined human rights protections nor structural accommodations of our Indigenous polities. Shireen Morris’s piece is also comparative; she considers the lessons that Australia might draw from New Zealand attempts at giving recognition to Maori. Lisa McAnearney describes and critiques the models that have been put forward to date for replacing the race power. The final two articles consider the proposal for the Constitution to include an Indigenous representative body, as suggested by the Cape York Institute and others. Gabrielle Appleby and George Williams discuss some of the legal and design issues that would need to be addressed were such a body to be created.
Volumes 19(1) and 19(2)
We are pleased that Dr Terri Libesman has joined the AILR as a special editor for Volume 19(1), which will be a thematic edition on Indigenous Children’s Wellbeing. It will contain a combination of Australian and comparative pieces with a particular focus on the impact of neoliberal approaches to child protection. Volume 19(2) is a general edition. It is anticipated that both 19(1) and 19(2) will be published by the middle of 2016.
Indigenous Law Bulletin
Indigenous Law Bulletin Vol 8 No 23 (March/April) comes out this week, and will feature an article on the Santa Teresa residents' claim before the Northern Territory Civil and Administrative Tribunal by Elly Patira; a review and report card by the Castan Centre's Stephen Gray on the effectiveness of the Intervention; a piece by ILC Project Officer Stijn Denayer about the redeveloped Indigenous Law Resources database which was launched in March 2016, and a piece by Alice Barter exploring the relationship Aboriginal offenders have with the criminal justice system, with particular reference to interactions between the judiciary and Aboriginal offenders in sentencing proceedings.
The transcript from Mr Patrick Dodson's recent address to the National Press Gallery on the 25-year anniversary of the RCIADIC recommendations is also reproduced.
The Bulletin features the photography of Jacob Nash, who is the Head of Design for Bangarra Dance Theatre.
Indigenous Law Bulletin Vol 8 No 22 (January/February) features an analysis by ASIC's Nathan Boyle of the regulation of book up, outlining the current limitations of the legislation and case law, and proposing law reform which could more effectively regulate the service.
Professor of Law Brendan Edgeworth writes on the four significant post-Ward High Court native title decisions of Akiba, Karpany, Brown and Congoo, and ANU’s Mary Spiers Williams breaks down the findings of a cost-benefit analysis of the Yuendumu Mediation and Justice Committee. Two articles which focus on Indigenous people with mental and cognitive disabilities in the criminal justice system are also in the edition: first, the team of researchers on the IAMHDCD project report on their findings; and second, Patrick Keyzer and Darren O’Donovan of La Trobe Law School report on the key challenges identified in this area by professional stakeholders, then go on to outline proposed draft legislative changes that would address these challenges.
Indigenous Law Bulletin Vol 8 No 21 (November/December) published in December 2016 and features a detailed and contextual analysis of the High Court of Australia’s decision in North Australian Aboriginal Justice Agency Ltd v Northern Territory  HCA 41 by Jonathon Hunyor.
There is an article exploring how legal pluralism operates in Ecuador, by Mayra Tirira Rubio; a piece about superannuation accessibility and Indigenous disadvantage by ASIC’s Alya Gordon and Nathan Boyle; and a comparison of Australia’s ‘right to negotiate’ with Canada’s ‘duty to consult’ by Kate Madden. We have also reproduced the transcript of Paul Keating’s landmark Redfern Park speech in this edition, to commemorate its 23rd anniversary on 10 December.