Indigenous Women

Keynote Address by Associate Professor Val Napoleon, University of Victoria, British Columbia (Canada)
“Imagining beyond Diversity: Indigeneity and gender”

Professor Napoleon used the motif of a raven in the introduction of her speech. Ravens have a reputation in many cultures as tricksters, and this is no different in Indigenous tradition in Canada. However, she pointed out that tricksters enable us to look at our contradictions, blind spots and problems. She therefore used the motif on her slides to give her audience “something to look at” and to bring that attitude of examining blind spots in thinking about the law. Professor Napoleon also analogised Indigenous legal orders as stars to encapsulate the diversity of Indigenous legal orders and the diversity of peoples within legal orders.

The speech comprised of four main parts–this write-up focuses on the first two:

  1. Exploring the diversity of legal orders and law, and state multijuridicalism;
  2. the politics of diversity as it relates to people and people;
  3. several examples practical engagements with Indigenous law;
  4. a snapshot of University of Victoria (Canada)’s new Joint Degree in Canadian Common Law and Indigenous Legal Orders (JD/JID).

With respect to the first, Professor Napoleon’s basic point was that Canada was currently undergoing a period of rebuilding Indigenous law given the damage and distortion done to it by colonization. She, however, pointed out the increasing visibility of Indigenous law in Canada, especially in court decisions. There was a shift, in particular, in how Indigenous law was treated as a legitimate legal perspective as opposed to fact or evidence. She also borrowed a quote from Justice Grammond, describing Indigenous law as “Indigenous legislation” as opposed to “custom”. The first step, she argued, in making Indigenous law visible, was to pose the questions: what is legal according to this Indigenous society and its legal order; and what do we need to know to answer that question. Rather than romanticising Indigenous law, Professor Napoleon emphasized that law is always a part of its surrounding power relations and that Indigenous law is no different. As such, Indigenous law has both the promise and potential failure of law.

With respect to the second, Professor Napoleon reiterates a point made by Prasana Ranganathan that the problem of ‘diversity discourse’ is the failure to challenge the assumptions of underlying background and norms. Images of the marginalized are used for promotion, however within the institution they are rarely promoted—their success is not prioritised. As such, the importance is on inclusion rather than difference. This is a conception of inclusion that holds the full spectrum of identities, that does not assume homogeneity among the marginalized, and that does not assume equality of experience within marginalised peoples. She also emphasised the importance of intersectionality to be properly inclusive. She also made a final point on how it is difficult (but important) to talk about Indigenous male privilege.

Judge Sharon Otene (New Zealand) “Waitangi Tribunal and indigenous women”

Judge Otene began with a story: in February 2021, the Waitangi Tribunal commenced the Mana Wāhine Inquiry, a quarter of a century since the first claim was brought by a group of 16 pre-eminent Māori women leaders in 1993. Among other things, it will examine how wāhine Māori have been excluded from decision-making since 1840. This reflects a challenge facing contemporary justice sector issues in Aotearoa.

One way to ensure the voices of wāhine Māori are heard, the Judge suggested, is to broaden the narrative around incarceration rates so that it starts with children. Māori comprise 24% of the child population of Aotearoa, but 68% of children in state care. How do we broaden the narrative? By empowering the community. One example was Te Korimako, a collective of wāhine Māori family law practitioners that was formed in 2018 out of concern that whanau were disenfranchised from the state child custody system. The group empowered Māori social services providers to work with families and, in doing so, played a part in the recent fall of Māori children entering state care. This was an exercise in mana wāhine.

Judge Lillian McLellan (Canada) “To Work Together: Meeting the Call for Change to Indigenous Justice in Alberta, Canada”

The Judge highlighted the disproportionate Indigenous incarceration rate in Alberta and in Canada more generally. In particular, Indigenous women were disproportionately affected and this was especially concerning given that 2/3 of them are mothers—70% of which are single mothers. This was obviously highly concerning, given that the children of these women would grow up with their mother in prison. A significant cause of this was the intergenerational effect of residential schools which was part of federal assimilation policy in the nineteenth and twentieth centuries. The current Canadian criminal code was very ineffective in dealing dealing with Indigenous offending and needs reform. She highlighted many of the current initiatives in Canada—not so different from New Zealand rangatahi and other specialist courts.

President Fleur Kingham (Australia) “The Impact of Environmental Law on Indigenous Women in Australia”

The Judge started with a modesty point that her particular perspective was not an Indigenous women’s but a personal perspective on how the law might enhance participation of Indigenous women in Australian governance. This was a particular point of importance given the devastating Australian wildfires in 2020 which particularly affected Indigenous communities. Australian Indigenous communities have significant experience in fire control—however, this has been largely ignored by officials. The Judge therefore highlighted the importance of Indigenous knowledge in this area.

Judge Irina Graciela Cervantes Bravo (Mexico) “Affirmative action as protection for indigenous groups”

The Judge spoke about how judges have special obligations to Indigenous peoples. Further, that there must be an effective legal system for Indigenous peoples and one that recognises their right to self-determination. She described the first obstacle for Indigenous participation in the legal system as language, given the use of Spanish in the legal system. The Judge also spoke about the use of affirmative action policies as being potentially divisive.

Reported by Don Lye and Hannah Yang