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Encounter scholarship - the study of contact and contest between Indigenous people and settler colonisers - is an important method and practice in humanities, used to interrogate the limits and possibilities of cross cultural engagements. This subject undertakes this task within the boundaries of law. Using a case study method, the subject centralises the histories and present expression of encounters between Indigenous and Anglo-Australian practices of jurisprudence: the care and conduct of law. We will frame different encounters by examining and analyzing how Australian settler colonial law has dispossessed Indigenous peoples from their land and law over time, in the process constructing for them raced identities, with ongoing, lived consequences. At the same time, we will consider how Indigenous peoples have interpreted and mobilised law – their own, as well as a demand for responsiveness from Anglo Australian domestic law, and international law – to contest those consequences and impacts. The focus in this subject will be predominantly on the encounter between Indigenous Australians and the Australian legal system and nation state over time, and the questions raised about contact, contest and processes of colonisation and resistance will be positioned as transnational phenomena, with comparative analysis where appropriate. The case studies are linked by their consideration of the subject’s overriding themes of Knowledge, Governance, Interests and Recognition. We will study up to three Encounters, which may include: Land Relationships and Title (including the histories of land rights before and after Mabo); Assimilation and Child Removal Policies; Genocide and Law; and The Protection and Prosecution of Knowledges. The course as a whole will argue that close consideration of the historical and present encounter between Indigenous and Anglo-Australian traditions of jurisprudence offers techniques for legal practitioners and scholars to act and reflect on their own responsibilities for legal knowledge and practice; as well as becoming open to the jurisprudential purview of others.
Intended learning outcomes
This subject will build upon the research skills already developed within the JD program. In addition, and specifically, on completion of this subject, students should:
Have developed an advanced, integrated understanding of a range of critical and theoretical analyses of the relationship between the settler colonial legal systems and Indigenous peoples, including:
- The historical, legal and political consequences of colonisation and the subsequent impact upon the lives and jurisprudence of indigenous peoples;
- Both the historical and contemporary cultural traditions, including the centrality of land, for Indigenous Australians;
- The major human rights claims of Indigenous Australians including claims to sovereignty both domestically and at international law, citizenship rights, property rights and recognition of customary law;
- The ways law may contribute to a resolution of outstanding issues between indigenous and non-indigenous peoples including through litigation, negotiation and agreement making;
- The ways in which the experiences of indigenous people in other common law countries are relevant to and may inform legal and political debate on issues relating to Indigenous Australians;
- The complexity of the ways in which colonisation is both transnationally experienced, by settler colonisers and indigenous peoples, yet also specifically practiced and survived within the boundaries of nation states, as designated by law.
On completion of the subject, students should have developed the following generic skills:
- Be able to draw on this understanding to:
- Self-direct an analytical research project, integrating learning from the breadth of encounter scholarship, methods and problematics;
- Interpret the historical context of law in order to analyse complex contemporary politico- legal problem;
- Describe and critically evaluate elements of the legal relationship between indigenous peoples and settler institutions;
- Investigate cross cultural encounters through the location and close reading of a range of primary and secondary source materials;
- Critically analyse at least two specific instances or examples of this relationship;
- Develop arguments as to the appropriate legal principles to apply in various circumstances that will advance the status of indigenous peoples;
- Present these specialist arguments, analyses and application of principles in the form of written arguments that are appropriately investigated, structured, developed, supported and referenced; and
- Present and defend an argument orally to demonstrate original and accountable thinking and scholarly practice.
- Additionally, you should aim to develop:
- Openness to new ideas and ethics associated with knowledge creation and usage;
- The capacity for critical and independent thought and reflection;
- The capacity to communicate, both orally and in writing, to specialist and non-specialist audiences;
- The capacity to plan and manage time; and
- Intercultural sensitivity and understanding.
Last updated: 10 November 2023