Library Guides: Indigenous Law (Australia): Introduction

This Guide is about...

This is a general guide to help you research Indigenous Law in Australia. For Comparative Indigenous Law on specific jurisdictions, see also:

Comparative Indigenous Law Research Guide

Indigenous law often involves human rights and discrimination law. To research Indigenous peoples in the context of human rights law, see:

Human Rights Legal Research Guide - the National/Domestic Human Rights tab links to pages for Australia.

This research guide was compiled in consultation with members of the Indigenous Law and Justice Hub at Melbourne Law School, which are on the lands of the Wurundjeri people of the Kulin Nations, Traditional owners of the land on which we learn.

This research guide is a “work in progress” and we welcome your comments and suggestions.

From Eddie Cubillo

The Council of Australian Law Deans (CALD) in December 2020 made a statement on Australian Law’s Systemic Discrimination and Structural Bias Against First Nations Peoples.

"CALD acknowledges the part that Australian legal education has played in supporting, either tacitly or openly, the law’s systemic discrimination and structural bias against First Nations peoples. At the same time, CALD affirms the positive contribution Australian law schools can, should and will make, in full partnership with First Nations peoples, in exposing, critiquing and remedying all forms of institutionalised injustice."

Source: https://law.unimelb.edu.au/news/iljh/cald-statement

This guide is a start to make change at the MLS.

Australia as a nation is at a crucial moment, we have a chance to set the structures for recognising, respecting and truly listening to First Nations Peoples and setting a standard that we all can be proud off.

It starts with us!

Eddie Cubillo, Director, Indigenous Law and Justice Hub

Indigenous Law

The study of Indigenous or Aboriginal law includes:

The Laws of Indigenous peoples (for example, the tribal codes and constitutions of Native Americans)
Treaties between Indigenous groups and the Crown (government)
Government laws that create rights and obligations specifically and only affecting Indigenous people. These can be:
- Entire Acts - for example, Australia's Native Title Act or
- Specific provisions in Acts - for example s 718.2(e) of the Canadian Criminal Code, which applies to sentencing of Aboriginal offenders.
The relationship between Indigenous people and the general legal system (for example, Indigenous people and the criminal justice system)

Terminology

A note on terminology when researching Indigenous law: 'Indigenous' is a generic term, as are First Peoples and Aboriginal/Aborigine. Terminology also changes over time. Remember to use additional variants depending on the jurisdiction you are researching. For example:

USA: Native American or American Indian. Also use 'Tribal Law' when researching.
Canada: Aboriginal or Indigenous is the generic term used for the three major groups: First Nations (or Indians), Inuit and Métis.
Australia: Indigenous Australian, Aboriginal, Torres Strait Islanders (Aboriginal peoples and Torres Strait Island peoples are indigenous peoples), First Nations. 'Native Title' is a term used for the rights of Indigenous people to land.
New Zealand: Maori. Maori groups include whānau (extended families), hapū (sub-tribes) and iwi (tribes).

Law : The Way of the Ancestors by Marcia Langton
Call Number: eBook
Publication Date: 2023
Indigenous legal judgments by Nicole Watson & Heather Douglas (eds) This book is a collection of key legal decisions affecting Indigenous Australians, which have been re-imagined so as to be inclusive of Indigenous people's stories, historical experience, perspectives and worldviews. In this groundbreaking work, Indigenous and non-Indigenous scholars have collaborated to rewrite 16 key decisions. Spanning from 1889 to 2017, the judgments reflect the trajectory of Indigenous people's engagements with Australian law. The collection includes decisions that laid the foundation for the wrongful application of terra nullius and the long disavowal of native title. Contributors have also challenged narrow judicial interpretations of native title, which have denied recognition to Indigenous people who suffered the prolonged impacts of dispossession. Exciting new voices have reclaimed Australian law to deliver justice to the Stolen Generations and to families who have experienced institutional and police racism. Contributors have shown how judicial officers can use their power to challenge systemic racism and tell the stories of Indigenous people who have been dehumanised by the criminal justice system. The new judgments are characterised by intersectional perspectives which draw on postcolonial, critical race and whiteness theories. Several scholars have chosen to operate within the parameters of legal doctrine. Some have imagined new truth-telling forums, highlighting the strength and creative resistance of Indigenous people to oppression and exclusion. Others have rejected the possibility that the legal system, which has been integral to settler-colonialism, can ever deliver meaningful justice to Indigenous people.
Call Number: eBook
Publication Date: 2021