SLAW: Book Review: Indigenous Legal Judgments: Bringing Indigenous Voices Into Judicial Decision Making.

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

Indigenous Legal Judgments: Bringing Indigenous Voices into Judicial Decision Making. Edited by Nicole Watson & Heather Douglas. New York: Routledge, 2021. xviii, 323 p. Includes table of contents and index. ISBN 9781032004815 (hardcover) US$155.00; ISBN 9780367467456 (softcover) US$48.95; ISBN 9781003174349 (eBook) US$44.05.

Reviewed by Peter Aadoson
Counsel, Judicial Education
National Judicial Institute
In CLLR 47:2

Indigenous Legal Judgments is a powerful expression of Indigenous empowerment and self-determination. This is an important book not only because of what it says about what the law is, but also because of what it says about what the law could, and should, be. This is an essential read for anyone interested in seeing how reconciliation between Indigenous and non-Indigenous legal systems might be possible.

This book is the result of a project that placed Indigenous voices at the centre of judicial decision writing. Inspired by feminist judgment-writing projects, such as the Women’s Court of Canada, Indigenous Legal Judgments attempts to reimagine key judgments from a different perspective. Sixteen of the most important Australian judgments implicating Indigenous peoples and rights have been rewritten to recognise Indigenous history, knowledge, and world views.

The judgments are grouped into five parts: Sovereignty; Land and Sea Country; Racism and Discrimination; Family and Identity; and Criminalisation and Criminal Neglect. A summary of the original decision and an overview of the relevant history and social context precede each case. For a reader with minimal knowledge of Australian law or history, these overviews were a welcome addition.

This book is a collective effort, gathering the writing of 30 contributing authors. While all are legal experts, each author brings a unique background and specialized knowledge to the task. All authors participated in workshops where they were able to hone their judgment-writing skills and present their ideas to the group. Ultimately, many decided to co-author the decisions that appear in this book. While not all the authors are Indigenous, each is alive to the importance of Indigenous voice and agency.

Many of the judgments reimagined in this book were originally rendered with little or no input from the Indigenous peoples on whom they had an impact. In certain cases, Indigenous litigants had limited opportunities to express their voices; in other cases, no Indigenous litigants participated, even though the result had profound implications for Indigenous communities. This project is an opportunity to remedy, in a small way, historic wrongs and give a voice to the very people most impacted by the policies and laws covered in this text.

The authors approach the jurisprudence from several angles. Strikingly, some chose not to rewrite an Australian legal judgment, citing, for example, the impossibility of applying colonial laws to determine Indigenous sovereignty. These authors provide us instead with insightful commentaries on possible alternatives to strict application of colonial law. Other authors have chosen to provide dissenting opinions or imagined appeals, considering what results an alternate approach to the law could achieve. Regardless of the approach taken, each reimagined judgment asks us to imagine “what if” and consider “what next.”

Indigenous Legal Judgments has international significance. I was shocked at how closely the experiences and challenges explored in this book mirror those we are currently facing in Canada. The experiences of Australia’s Stolen Generation parallel the experiences of Canadian Sixties Scoop survivors, Indigenous women in both countries disproportionately experience violence, and questions of structural racism and the interrelationship of State and Indigenous laws remain to be addressed.

This book represents an important project, and I can only hope that it inspires similar work in other jurisdictions.