76068 Indigenous Peoples and the Law

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2025 is available in the Archives.

UTS: Law
Credit points: 6 cp
Result type: Grade and marks

Requisite(s): ( 70317 Real Property OR (70110 Introduction to Law AND (76006c Public International Law OR 70108c Public International Law OR 76110c Introduction to Public International Law)) OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (70106 Principles of Public International Law AND 94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.

Description

The Anglo-Australian legal system was built upon the dispossession of the land, resources, and knowledges of Aboriginal and Torres Strait Islander Peoples. This subject explores the historical and contemporary relationship between Aboriginal and Torres Strait Islander nations and the Australian legal system. It begins with a critique of the Australian legal fiction of 'settlement' in the context of the structure and operation of pre-existing and continuing Aboriginal and Torres Strait Islander societies. This is not merely an historical account: the subject explores the fundamental flaws in the construction and purported legitimation of the jurisdiction of the Anglo-Australian legal system as a means to understand and critique current and future developments within Aboriginal and Torres Strait Islander legal relations.

Within this framing, the subject explores constructions of Indigeneity in the law and broader society, set within a broader international and comparative perspective, and with attention to the international rights and protections within which Anglo-Australian law should be evaluated. It considers cutting edge areas of legal and policy development within this broader framework, paying attention to the sustained efforts in law reform, activism and advocacy of Indigenous people and Peoples themselves.

Topics studied are set out in the Content Topics and in the Programme, and complemented by student presentations and by a research essay.

Subject learning objectives (SLOs)

Upon successful completion of this subject students should be able to:

3.1.	Think critically about set readings to identify and articulate legal issues in context
3.4.	Apply reasoning and research from recommended sources to generate appropriate responses
5A.8.	Demonstrate the ability to construct a logical, reasoned and persuasive argument
5C.1.	Demonstrate active listening skills and respond with appropriate verbal and non verbal interpersonal messages in group discussion

Course intended learning outcomes (CILOs)

This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:

Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1)
Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1)
Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (LAW.4.1)
Communication
Effective and appropriate communication skills including:
a. Highly effective use of the English language to convey legal ideas and views to different and diverse audiences and environments;
b. An ability to communicate to inform, analyse, report and persuade;
c. An ability to strategically select an appropriate medium and message;
d. An ability to assess how messages are received and alter communication strategies accordingly; and
e. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.5.1)
Collaboration
Effective and appropriate collaboration skills in working together to achieve a common goal in a group learning environment or the workplace including:
a. An ability to give and receive feedback;
b. Appropriate professional and interpersonal skills in working collaboratively;
c. A capacity to develop strategies to successfully negotiate group challenges; and
d. An ability to be responsive and adaptive to the perspectives of collaborators, clients, counter parties and others. (LAW.6.1)

Teaching and learning strategies

Strategy 1: Reading and reflecting on the course materials.
Strategy 2: Responding to questions set by the seminar leader and engaging with other students and the seminar leader in seminars.
Strategy 3: Reflection at a deeper level on particular questions and issues raised in class in small and large seminar groups, in preparation for group presentation and research essay.

Subject Delivery

This subject will be delivered primarily through an interactive seminar format, as well as through select audio visual materials. The seminar format will assist you to consolidate and develop the knowledge that you acquire through your readings and critical reflection. Through classroom discussion your capacity for critical thought will be nurtured.

In order to get the most out of seminars, you will need to prepare prior to class and to participate in class discussion.

Content (topics)

The historical and current status of Indigenous rights in international and national law
Imposition of Anglo-Australian Law on Indigenous Peoples and people
Law as governance and social control
Indigenous rights to land, territory and culture in comparative and international perspective
Indigenous legal futures in Australia including legal pluralism, self-determination and the voice, treaty, truth process

Assessment

Assessment task 1: Class Participation

Objective(s):	This task addresses the following subject learning objectives: 3.1, 3.4, 5A.8 and 5C.1 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1 and LAW.4.1
Weight:	20%
Criteria:	Submissions will be marked in respect to: Regular and active participation in seminars; Consistent, relevant and critically informed contributions to class discussion; Evidence of preparation for class and development of understanding of materials; Capacity to communicate ideas to peers; Evidence of thorough engagement with course readings

Objective(s):

This task addresses the following subject learning objectives:

3.1, 3.4, 5A.8 and 5C.1

This task contributes specifically to the development of the following graduate attributes:

LAW.1.1, LAW.3.1 and LAW.4.1

Weight:

20%

Criteria:

Submissions will be marked in respect to:

Regular and active participation in seminars;
Consistent, relevant and critically informed contributions to class discussion;
Evidence of preparation for class and development of understanding of materials;
Capacity to communicate ideas to peers;
Evidence of thorough engagement with course readings

Assessment task 2: Group Presentation

Objective(s):	This task addresses the following subject learning objectives: 3.1, 3.4, 5A.8 and 5C.1 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1, LAW.5.1 and LAW.6.1
Weight:	20%
Criteria:	The Group component will be marked in respect to: Content: The level of critical engagement with, and accuracy of, the legal research in respect of the chosen topic. Process and Professionalism: Evidence of constructive group collaboration along with evidence of individual preparation and research. Effectiveness: The degree to which the Project communicates a clear and justifiable point of view or perspective. Presentation: Appropriate and engaging presentation or delivery.

Objective(s):

This task addresses the following subject learning objectives:

3.1, 3.4, 5A.8 and 5C.1

This task contributes specifically to the development of the following graduate attributes:

LAW.1.1, LAW.3.1, LAW.5.1 and LAW.6.1

Weight:

20%

Criteria:

The Group component will be marked in respect to:

Content: The level of critical engagement with, and accuracy of, the legal research in respect of the chosen topic.
Process and Professionalism: Evidence of constructive group collaboration along with evidence of individual preparation and research.
Effectiveness: The degree to which the Project communicates a clear and justifiable point of view or perspective.
Presentation: Appropriate and engaging presentation or delivery.

Assessment task 3: Research Essay

Objective(s):	This task addresses the following subject learning objectives: 3.4 and 5A.8 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1 and LAW.4.1
Weight:	60%
Length:	2,200 words
Criteria:	Critical engagement with contemporary legal issue with respect to Aboriginal and Torres Strait Islander Peoples. Demonstration of understanding of the nature of underlying issue, its historical context and operation vis-à-vis Indigenous perspectives, and legal and institutional perspectives. Evidence of research beyond the assigned readings, representing broad coverage of relevant materials. Use and reliance on research material displays evidence of critical reflection of the nature of the source of those materials in relation to inherent assumptions and perspectives embodied within it. Provides a clear, consistent, and logical response to the research topic that is informed by reliance upon a clear and consistent theoretical basis. Clear and effective use of professional plain English and appropriate language

Required texts

A Study Guide is available via Canvas. Throughout the subject other materials will be uploaded to Canvas and also made available via the Library's online service.

In addition to academic texts, this topic may make use of a number of alternative media formats for your 'readings' which include short films and tv shows, podcasts, and other creative works: instructions and links will be provided where appropriate.

The subject also engages with debates and issues that can (and do) arise in the broader community throughout the course. This may result in additional resources being provided to facilitate relevant and appropriate in-class discussion. As such notices and updates will also often be posted to Canvas.

Students are responsible for checking Canvas regularly.

Recommended texts

Larissa Behrendt, Chris Cunneen, and Terri Libesman, Aboriginal and Torres Strait Islander Legal Relations (2nd ed, Oxford University Press, 2019)

Other resources

Reports, Journals and General References

Australian Human Rights Commission Annual Social Justice reports http://www.humanrights.gov.au/social_justice/sj_report/index.html
Australian Human Rights Commission Annual Native Title reports http://www.humanrights.gov.au/social_justice/nt_report/index.html
Australian Indigenous Law Review http://www.ilc.unsw.edu.au/publications/ailr/
Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families http://www.austlii.edu.au/au/other/IndigLRes/stolen/
Indigenous Law Bulletin http://www.ilc.unsw.edu.au/publications/ilb/index.asp
Inquiry into the Protection of Northern Territory Children from Sexual Abuse (2007) Ampe Akelyernemane Meke Mekarle (Little Children are Sacred), Northern Territory Government http://www.inquirysaac.nt.gov.au/
Royal Commission on Aboriginal Peoples, Canadian Report, 1996, http://www.austlii.edu.au/au/journals/AILR/1998/4.html
Royal Commission into Aboriginal Deaths in Custody, National Report, 1991, http://www.austlii.edu.au/au/other/IndigLRes/rciadic/
Royal Commission into Aboriginal Deaths in Custody Summary (prepared by Aboriginal Legal Rights Movement, Adelaide). http://www.austlii.edu.au/au/other/IndigLRes/rciadic/rciadic_summary/

Useful Websites

Agreements, Treaties and Negotiated Settlements Project http://www.atns.net.au/
Australian Domestic and Family Violence Clearinghouse, Indigenous Resources, http://www.austdvclearinghouse.unsw.edu.au/indigenous_res.html
Australian Human Rights Commission, Aboriginal and Torres Strait Islander Social Justice, http://www.hreoc.gov.au/social_justice/index.html
Australian Indigenous Law Library, AustLII http://www.austlii.edu.au/au/special/indigenous/
Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Research Discussion Papers, http://www.aiatsis.gov.au/research/discussion.html
AIATSIS, Native Title Research Unit, http://ntru.aiatsis.gov.au/
AIATSIS, the Wentworth Lectures http://www1.aiatsis.gov.au/exhibitions/ wentworth/wentworthcontents.htm
Australian Institute of Criminology, National Deaths in Custody Program http://www.aic.gov.au/about_aic/research_programs/nmp/0004.aspx
British Columbia Treaty Commission http://www.bctreaty.net/
Harvard Project on American Indian Economic development www.ksg.harvard.edu/hpaied
Indigenous Justice Clearing House http://www.indigenousjustice.gov.au/
Indigenous Land Corporation http://www.ilc.gov.au/site/page.cfm
Indigenous Law Centre http://www.ilc.unsw.edu.au/
Office of the High Commissioner for Human Rights, Indigenous Peoples http://www2.ohchr.org/english/issues/indigenous/index.htm
Office of the Registrar of Indigenous Corporations http://www.orac.gov.au/
Overcoming Indigenous Disadvantage reports http://www.pc.gov.au/gsp/reports/indigenous 2009 Report: http://www.pc.gov.au/gsp/reports/indigenous/ keyindicators2009
Queensland Centre for Domestic and Family Violence, Indigenous Family Violence Prevention Forum http://www.noviolence.com.au/annualforum.html
Torres Strait Regional Authority http://www.tsra.gov.au/