LAWS1111 Lecture Notes - Lecture 5: Settler Colonialism, Australian Aboriginal Kinship, Nationstates

52 views5 pages
19 Jun 2018
School
Department
Course
Professor
Indigenous Law and Settler Law: Decolonising Perspectives
Big shift from talking about 'them' (Indigenous people) to what 'we' (white
people/colonists) did wrong.
Isn't about whether or not they fit in; it is more about what we are doing/did
wrong towards them.
Who is a settler? Who is Indigenous
-
What underlies Indigenous Legal Systems?
-
International law and Indigenous Peoples:
Can there be a plural system?
-
Placing Country at the Centre.
-
Settler Colonialism
How is it different?
-
Settler colonialism is a distinct type of colonialism that functions
through the replacement of indigenous populations with an invasive
settler society that, over time, develops a distinctive identity and
sovereignty.
-
Patrick Wolfe (2008) 'colonization is a process not an event'.
-
Settler colonialism is eliminatory, often genocidal.
-
The inevitability of violence of various kinds characterises settler
colonisation globally.
-
Settler colonialism, as an institution or system, requires violence or the
threat of violence to attain its goals. People don’t hand over their land,
resources, children and futures without a fight and that fight is met
with violence.
-
In employing the force necessary to accomplish its expansionist goals,
a colonising regime institutionalises violence (Dunbar-Oritz)
-
Who is Indigenous?
Australia's first peoples.
-
Frequently used in an international context.
-
Some Aboriginal people object to using the term 'Indigenous' because
it fails to respect their own identity and preferences.
-
Terminology
They are quite problematic because they are 'white' terms imposed
through the process of colonisation.
-
They don’t reflect the cultural and linguistic diversity of the Aboriginal
languages spoken in Australia.
-
Aboriginal peoples prefer to identity themselves in their own language
terms e.g. Noongar, Palyku.
-
Australian Inquiries
Australian Law Reform Commission (ALRC) 1986
There existed, in traditional Aboriginal societies, a body of rules,
values and traditions, more or less clearly defined, which were
accepted as establishing standards or procedures to be followed
and upheld.
-
Northern Territory (2004) Law Reform Committee (NTLRC)
Whether Aboriginal laws still functioned in NT
-
Western Australia (WALRC) (2001-6)
Aboriginal customary law in WA.
Support for recognition of Aboriginal customary law amongst
Aboriginal people continued non-recognition, and constant
attempts to dismantle traditional practices, profoundly
disadvantaged Aboriginal people by undermining social
structures and systems of authority. Western systems of justice
alone are ineffective in dealing with issues within Aboriginal
communities.
-
'A fact of life…'
Aboriginal customary law is a fact of life for most Aboriginal people in
the NT, not just those in Aboriginal communities.
Because it defines people's rights and responsibilities, who a
person is, and it defined a person's relationships to everybody
else in the world. (NTLRC 2005: 16)
-
NSW Aboriginal Justice Advisory Council
Aboriginal customary law is fundamentally a means of dispute
resolution based on traditional spiritual beliefs and cultural traditions
that provide sanction against those actions which are harmful to the
community. In a criminal context fundamentally customary law is
simple a means of a community establishing its set of basic values and
providing a means to punish those who transgress against its
established community laws. (2000)
-
ALRC: For or Against Recognition?
'For' recognition.
The desirability of achieving reconciliation between Aboriginal and
non-Aboriginal societies;
-
The fact that Aboriginal people are often unjustly punished for
following the dictates of their own law;
-
The failure of the general law to reduce levels of over representation;
-
Potential reductions in offending and the costs of crime;
-
The fact that customary practices are taken into account already albeit
in an ad hoc manner;
-
The potential for non-recognition to perpetuate paternalistic and
assimilationist relationships; and
-
Recognition would improve Australia's standing in the world.
-
'Against' recognition.
The possibility that we may be legitimating practices unacceptable to
mainstream Australia;
-
The possibility that Aboriginal people may be forced to reveal
secret/sacred knowledge if Aboriginal processes are brought closer to
our legal system;
-
Loss of Aboriginal control over customary law;
-
Aboriginal women might be disadvantaged;
-
Recognising Aboriginal law may create 'two laws' and;
-
Recognition may not be relevant to many Aboriginal people who prefer
the white system and may only be applicable in strictly traditional
regions.
-
The ALRC came out against the idea that there should be two separate
systems of justice.
-
Allowing space for what the study calls a 'vibrant decentred Aboriginal law'
to flourish required commitment to a pluralistic framework, rather than one
'single imposed system' where there would be a commitment to self-
determination, dialogue and community empowerment (Fitzgerald 2001:
113).
The Cape York Justice Study calls for the maximum feasible devolution of
authority over justice issues to what it calls 'pods of justice'.
Guiding Principles for Reform
Improve government service provision to Aboriginal people.1.
Collaboration, cooperation and consultation.2.
Voluntariness and consent.3.
Local focus and recognition of diversity.4.
Community-based and community-owned initiatives.5.
Respect and empowerment of Aboriginal people.6.
Balanced gender and family, social or skin group representation.7.
Adequate and ongoing resourcing.8.
Ongoing monitoring and evaluation.9.
Indigenous People 'dismissed as marginal non-state actors'
Do not have a recognisable Westphalian Nation State:
Sovereignty
Territorial Integrity
Legal Equality
-
Global Indigenous politics, defined as a project that advances
Indigenous peoples' rights, is far from insignificant and is forging major
changes in the international system. The implementation of Indigenous
rights requires a rethinking and reordering of sovereignty, territoriality,
decolonisation, liberalism and human rights (Lightfoot, 2016:18)
-
Self-Determination
UNDRIP contains a right to self-determination in Art 3, and Art 4 makes
it clear that self-determination is intended to refer to achievement of
self-determination within nation-states.
-
Art 4 was included in order to assuage the fears of nation-states with
Indigenous populations, esp. CANZUS.
-
Free, Prior and Informed Consent - (Cornerstone of UNDRIP)
The FPIC principle in the UN Declaration on the Rights of Indigenous
Peoples (UNDRIP): Article 10 states:
Indigenous peoples shall not be forcibly removed from their lands
or territories. No recollection shall take place without the free,
prior and informed consent of the indigenous peoples concerned
and after agreement on just and fair compensation and, where
possible, with the option of return (emphasis added).
-
FPIC has been employed across a range of issues by Indigenous peoples
globally, for example an Alliance of Forrest Peoples describe FPIC thus:
'Free prior and informed consent, is the principle that a
community has the right to give or withhold its consent to
proposed projects that may affect the lands they customarily
own, occupy or otherwise use.
-
Sentencing Practice
Australian Courts have tended to operate a very 'weak' version of
'cultural relativism', with some concessions made to cultural
difference.
-
Thalia Anthony (2013) talks of a 'recognition dilemma' in criminal
sentencing, where courts 'recognise' Indigenous difference but uphold
the system's essential 'whiteness'.
-
Methods of Identifying Causes of Aboriginal Crime
Focus on Aboriginal people as putative offenders and communities as
contexts of offending (Thalia Anthony, 2014)
-
Focus on Indigenous communities as a 'risk'
-
Deflects from focus on violence of postcolonial state.
-
Aboriginal Courts: Post-Colonial Justice?
Koori Court
Magistrate along with Aboriginal Elders.
Discuss culture and background of the accused.
-
Circle sentencing courts
Sit together; accused has their community with them along with
magistrate.
-
Lecture -Harry Blagg
Monday, 26 March 2018
12:45 pm
Unlock document

This preview shows pages 1-2 of the document.
Unlock all 5 pages and 3 million more documents.

Already have an account? Log in
Indigenous Law and Settler Law: Decolonising Perspectives
Big shift from talking about 'them' (Indigenous people) to what 'we' (white
people/colonists) did wrong.
Isn't about whether or not they fit in; it is more about what we are doing/did
wrong towards them.
Who is a settler? Who is Indigenous
-
What underlies Indigenous Legal Systems?
-
International law and Indigenous Peoples:
Can there be a plural system?
-
Placing Country at the Centre.
-
Settler Colonialism
How is it different?
-
Settler colonialism is a distinct type of colonialism that functions
through the replacement of indigenous populations with an invasive
settler society that, over time, develops a distinctive identity and
sovereignty.
-
Patrick Wolfe (2008) 'colonization is a process not an event'.
-
Settler colonialism is eliminatory, often genocidal.
-
The inevitability of violence of various kinds characterises settler
colonisation globally.
-
Settler colonialism, as an institution or system, requires violence or the
threat of violence to attain its goals. People don’t hand over their land,
resources, children and futures without a fight and that fight is met
with violence.
-
In employing the force necessary to accomplish its expansionist goals,
a colonising regime institutionalises violence (Dunbar-Oritz)
-
Who is Indigenous?
Australia's first peoples.
-
Frequently used in an international context.
-
Some Aboriginal people object to using the term 'Indigenous' because
it fails to respect their own identity and preferences.
-
Terminology
They are quite problematic because they are 'white' terms imposed
through the process of colonisation.
-
They don’t reflect the cultural and linguistic diversity of the Aboriginal
languages spoken in Australia.
-
Aboriginal peoples prefer to identity themselves in their own language
terms e.g. Noongar, Palyku.
-
Australian Inquiries
Australian Law Reform Commission (ALRC) 1986
There existed, in traditional Aboriginal societies, a body of rules,
values and traditions, more or less clearly defined, which were
accepted as establishing standards or procedures to be followed
and upheld.
-
Northern Territory (2004) Law Reform Committee (NTLRC)
Whether Aboriginal laws still functioned in NT
-
Western Australia (WALRC) (2001-6)
Aboriginal customary law in WA.
Support for recognition of Aboriginal customary law amongst
Aboriginal people continued non-recognition, and constant
attempts to dismantle traditional practices, profoundly
disadvantaged Aboriginal people by undermining social
structures and systems of authority. Western systems of justice
alone are ineffective in dealing with issues within Aboriginal
communities.
-
'A fact of life…'
Aboriginal customary law is a fact of life for most Aboriginal people in
the NT, not just those in Aboriginal communities.
Because it defines people's rights and responsibilities, who a
person is, and it defined a person's relationships to everybody
else in the world. (NTLRC 2005: 16)
-
NSW Aboriginal Justice Advisory Council
Aboriginal customary law is fundamentally a means of dispute
resolution based on traditional spiritual beliefs and cultural traditions
that provide sanction against those actions which are harmful to the
community. In a criminal context fundamentally customary law is
simple a means of a community establishing its set of basic values and
providing a means to punish those who transgress against its
established community laws. (2000)
-
ALRC: For or Against Recognition?
'For' recognition.
The desirability of achieving reconciliation between Aboriginal and
non-Aboriginal societies;
-
The fact that Aboriginal people are often unjustly punished for
following the dictates of their own law;
-
The failure of the general law to reduce levels of over representation;
-
Potential reductions in offending and the costs of crime;
-
The fact that customary practices are taken into account already albeit
in an ad hoc manner;
-
The potential for non-recognition to perpetuate paternalistic and
assimilationist relationships; and
-
Recognition would improve Australia's standing in the world.
-
'Against' recognition.
The possibility that we may be legitimating practices unacceptable to
mainstream Australia;
-
The possibility that Aboriginal people may be forced to reveal
secret/sacred knowledge if Aboriginal processes are brought closer to
our legal system;
-
Loss of Aboriginal control over customary law;
-
Aboriginal women might be disadvantaged;
-
Recognising Aboriginal law may create 'two laws' and;
-
Recognition may not be relevant to many Aboriginal people who prefer
the white system and may only be applicable in strictly traditional
regions.
-
The ALRC came out against the idea that there should be two separate
systems of justice.
-
Allowing space for what the study calls a 'vibrant decentred Aboriginal law'
to flourish required commitment to a pluralistic framework, rather than one
'single imposed system' where there would be a commitment to self-
determination, dialogue and community empowerment (Fitzgerald 2001:
113).
The Cape York Justice Study calls for the maximum feasible devolution of
authority over justice issues to what it calls 'pods of justice'.
Guiding Principles for Reform
Improve government service provision to Aboriginal people.1.
Collaboration, cooperation and consultation.2.
Voluntariness and consent.3.
Local focus and recognition of diversity.4.
Community-based and community-owned initiatives.5.
Respect and empowerment of Aboriginal people.6.
Balanced gender and family, social or skin group representation.7.
Adequate and ongoing resourcing.8.
Ongoing monitoring and evaluation.9.
Indigenous People 'dismissed as marginal non-state actors'
Do not have a recognisable Westphalian Nation State:
Sovereignty
Territorial Integrity
Legal Equality
-
Global Indigenous politics, defined as a project that advances
Indigenous peoples' rights, is far from insignificant and is forging major
changes in the international system. The implementation of Indigenous
rights requires a rethinking and reordering of sovereignty, territoriality,
decolonisation, liberalism and human rights (Lightfoot, 2016:18)
-
Self-Determination
UNDRIP contains a right to self-determination in Art 3, and Art 4 makes
it clear that self-determination is intended to refer to achievement of
self-determination within nation-states.
-
Art 4 was included in order to assuage the fears of nation-states with
Indigenous populations, esp. CANZUS.
-
Free, Prior and Informed Consent - (Cornerstone of UNDRIP)
The FPIC principle in the UN Declaration on the Rights of Indigenous
Peoples (UNDRIP): Article 10 states:
Indigenous peoples shall not be forcibly removed from their lands
or territories. No recollection shall take place without the free,
prior and informed consent of the indigenous peoples concerned
and after agreement on just and fair compensation and, where
possible, with the option of return (emphasis added).
-
FPIC has been employed across a range of issues by Indigenous peoples
globally, for example an Alliance of Forrest Peoples describe FPIC thus:
'Free prior and informed consent, is the principle that a
community has the right to give or withhold its consent to
proposed projects that may affect the lands they customarily
own, occupy or otherwise use.
-
Sentencing Practice
Australian Courts have tended to operate a very 'weak' version of
'cultural relativism', with some concessions made to cultural
difference.
-
Thalia Anthony (2013) talks of a 'recognition dilemma' in criminal
sentencing, where courts 'recognise' Indigenous difference but uphold
the system's essential 'whiteness'.
-
Methods of Identifying Causes of Aboriginal Crime
Focus on Aboriginal people as putative offenders and communities as
contexts of offending (Thalia Anthony, 2014)
-
Focus on Indigenous communities as a 'risk'
-
Deflects from focus on violence of postcolonial state.
-
Aboriginal Courts: Post-Colonial Justice?
Koori Court
Magistrate along with Aboriginal Elders.
Discuss culture and background of the accused.
-
Circle sentencing courts
Sit together; accused has their community with them along with
magistrate.
-
Lecture -Harry Blagg
Monday, 26 March 2018 12:45 pm
Unlock document

This preview shows pages 1-2 of the document.
Unlock all 5 pages and 3 million more documents.

Already have an account? Log in

Document Summary

Big shift from talking about "them" (indigenous people) to what "we" (white people/colonists) did wrong. Isn"t about whether or not they fit in; it is more about what we are doing/did wrong towards them. Settler colonialism is a distinct type of colonialism that functions through the replacement of indigenous populations with an invasive settler society that, over time, develops a distinctive identity and sovereignty. Patrick wolfe (2008) "colonization is a process not an event". The inevitability of violence of various kinds characterises settler colonisation globally. Settler colonialism, as an institution or system, requires violence or the threat of violence to attain its goals. People don"t hand over their land, resources, children and futures without a fight and that fight is met with violence. In employing the force necessary to accomplish its expansionist goals, a colonising regime institutionalises violence (dunbar-oritz) Some aboriginal people object to using the term "indigenous" because it fails to respect their own identity and preferences.

Get access

Grade+20% off
$8 USD/m$10 USD/m
Billed $96 USD annually
Grade+
Homework Help
Study Guides
Textbook Solutions
Class Notes
Textbook Notes
Booster Class
40 Verified Answers
Class+
$8 USD/m
Billed $96 USD annually
Class+
Homework Help
Study Guides
Textbook Solutions
Class Notes
Textbook Notes
Booster Class
30 Verified Answers

Related Documents