The myth of Terra Nullius & the absence of indigenous law in legal education
Story by: Wenee Yap
Photo by: www.sxc.hu
Definition of a legal fiction, by Justice Lennox in the Canadian case of Stoner v Skene: "...an assumption of a possible thing as a fact, which is not literally true, for the advancement of justice...which the law will not allow to be disproved." Though it may initially seem absurd, legal fictions frequently arise in the law. Australia's most famous example is the myth of terra nullius - a Latin expression meaning 'land belonging to no one' - a fiction which denied the fact that Australia had been inhabited by indigenous peoples for thousands of years, and paved the way for the European settlement of Australia in 1788.
Despite the landmark 1992 Mabo judgment exposing terra nullius as false and convenient presumption and recognizing, for the first time in Australia's history, native title, its colonialist legacy may still be felt seventeen years later.
Even at the level of law school, Dr Thalia Anthony of the University of Sydney observed that there is nowhere throughout the core subjects a serious consideration of indigenous issues. Rather, law's core subjects - commonly known as the Priestley Eleven and regarded as containing the essentials of legal education - "adopt a view that reflects the neutral structures of society, instead of interrogating them," said Dr Anthony.
Dr Anthony's research, presented as part of a the UTS Faculty of Law's ongoing Research Seminar Series, lays bare many unspoken criticisms of latter day legal education. "The Anglo-legal system exists because it displaced the indigenous legal system", said Dr Anthony. It continues to do so, she argues, by failing to consider indigenous law perspectives in any of its law subjects - or leaving room for only a cursory, superficial treatment of indigenous law.
She stresses the need to evolve beyond what she calls neo-colonial legal education. She suggests both a "systemic" and "transsystemic" approach. Systemic change could occur by the sustained efforts of academics to incorporate more indigenous content, while transsystemic change would involve bringing an indigenous perspective to an understanding of indigenous legal issues. "Decolonisation [of legal education] occurs by learning to think critically," said Dr Anthony.
She also warns against complacency. "Since Mabo, we now have a recognition approach. We need to be critical of the assumption that we have progressed. Indigenous law is its own legitimate system of law and needs this recognition."
Given the uneasy mix of cultures and ethnicities, as well as the ongoing socio-economic issues prevalent in Australia's indigenous community - more likely to be imprisoned, comparatively lower life expectancy - achieving true 'decolonisation' in the study of law may be no mean feat. Dr Anthony hopes to release a published collection of research papers from a recent conference regarding indigenous law in Australian legal education later this year.