Indigenous Law Bulletin
by Megan Davis
Aboriginal women have a well documented role in Aboriginal communities; caring for children and families in the role of mother and provider; participating in rituals and the practice of Aboriginal law; and having responsibilities to land. There is considerable literature examining and documenting the important role of Aboriginal women in Aboriginal societies, such as anthropological texts highlighting the traditional roles of Aboriginal women and land or historical texts exploring the colonial roles of Aboriginal women and their relationship to white women or white men. Yet while there is this examination of Aboriginal women and the colonial project there is an identifiable gap in the literature examining the treatment of Aboriginal women and the Australian democratic project.
Indigenous peoples are regularly acknowledged in Australia to be the most disadvantaged group. Yet there is less understanding of how Aboriginal women within those communities fare. The reason for this is generally explained by way of political strategy in terms of political advocacy with the state as well as the view that for Aboriginal women, race trumps gender on most issues. But this approach can be problematic for Indigenous women as it can render the specific and unique challenges of Aboriginal women invisible. In particular, the recent national attention on violence and sexual assault in Aboriginal communities highlights the difficulty Aboriginal women have had in influencing public policy and legislative reform. This article provides a conspectus of current research being conducted by the Indigenous Law Centre on Aboriginal women’s issues in Australia.
The contemporary form of democracy today is representative and the structure of modern democracy permits only limited citizen participation in decision making and the formulation of policies that affect each as individuals and the community. This participation is filtered through the ‘ballot box’ and therefore Australia can be regarded as having a minimalist participatory democracy. This means that liberal democracies have a tendency toward ‘majoritarianism’. The majoritarian nature of liberal democratic polities means that decisions and policies are formulated on the basis of the greatest good for the greatest number and this explains the frequently employed justification by politicians of decisions and policies as being what the ‘majority’ wants. As a result of this, indigenous political claims are categorised and frequently dismissed as merely the special interest claims of a minority group. The question being: why should a minority ask for something that the majority does not want or need?
This tendency of liberal democracy marginalises indigenous peoples’ issues and indigenous political participation within the state and is compounded by a public policy culture that generally focuses upon the greatest good for the greatest number, frequently eschewing special or minority interests. For this reason, indigenous peoples’ issues within states where indigenous peoples constitute a small percentage of the population are a minor political priority. Prime Minister John Howard often alludes to the ballot box as being the main accountability mechanism. For a group who number two per cent of a 20 million population, it is evident that this mechanism doesn’t adequately protect Indigenous interests. For this reason most other common law democracies institute other mechanisms to counter majoritarianism, such as a Treaty or agreement between the state and indigenous groups; constitutional reform; designated seats; indigenous electoral roles or indigenous Parliaments.
This hindrance to Indigenous advocacy and policy making in Indigenous affairs is particularly pronounced for Aboriginal women. First, Indigenous issues tend to be configured under the amorphous term ‘Indigenous peoples’ as a homogenous group and this approach fails to recognise the gendered impact of colonisation upon men and women and the different ways in which the state impacts upon Indigenous men and women. It also shields from greater inquiry the true differences between the socio-economic status of Indigenous men and women within the state and makes ill-conceived assumptions about the neutrality of legal and political systems within liberal democratic states. A good example of this is the well documented problem in the past for some Aboriginal women in gaining legal representation from Aboriginal legal services. Another example is the way in which the judiciary has derogatorily configured Aboriginal women in customary law decisions.
The literature does show, however, a strong focus by Aboriginal women on responding to and critiquing feminisms. There has also been a strong body of scholarship about family violence, sexual assault and Aboriginal customary law against Aboriginal women. Yet there is also a problem with the way in which Aboriginal women’s issues have been dealt with in the past in Aboriginal politics and equally by the way Aboriginal women’s issues are dealt with by the public institutions of the state. Even though there is extensive literature examining institutional racism in Australia as it relates to Indigenous peoples, there is a significant gap in the literature in examining the structural problem as it relates specifically to Aboriginal women.
It is important to address the identified gap in the literature because of the important role Aboriginal women play in Australian society. Moreover the experience of late is that Aboriginal women have great difficulty in influencing public policy and gaining political and media traction. We must remember the recent controversy about violence and sexual assault against Aboriginal women in communities was not triggered by the excellent scholarship of Indigenous women such as Audrey Bolger, Judy Atkinson or Boni Robertson – it was triggered by a white woman echoing identical concerns to that of Aboriginal women.
In the political vacuum of the post-ATSIC environment there are nascent discussions about future representative structures for Indigenous peoples. It is important to establish the extent of the difficulties faced by Aboriginal women within liberal democracies in order to establish an argument for the accommodation of Indigenous women in any future national Indigenous governance structure. This was acknowledged by Jackie Huggins, a member of the ATSIC Review panel, in the final report of the ATSIC Review. She recommended direct election and 50:50 mandated participation of women in elected positions but it was also noted in the final report that Jackie’s recommendation was not supported by the other panel members, who incidentally were both white males. It is also important in the context of ongoing national discussion about reform of Australian public institutions. This includes debate about a national bill of rights that may recognise gender equality or Indigenous cultural rights and debate a Treaty between Indigenous and non-Indigenous Australians. It is also important in relation to the ongoing process of reconciliation.
This research involves a comparative analysis of the experiences of Canadian Aboriginal women in Canadian liberal democracy. Canada and Australia are similar liberal democracies with a common law system and an indigenous population. For Aboriginal women, the experiences have been strikingly similar. For example, the political structures for Aboriginal women in Canada have few women in leadership positions and the literature reveals a concern about the adoption by Aboriginal men of mainstream patriarchal attitudes and a ‘devaluing’ of First Nations women – a concern identified by Aboriginal women in Australia. Though in Canada, the Indian Act facilitated the exclusion of Aboriginal women from decision-making.
There is also very little literature examining the political participation of Indigenous women in mainstream elections in Australia, just as there is very little examining the processes of ATSIC. The research that does exist indicates that there was a discrepancy in gender participation and representation in ATSIC elections observing that, ‘women do not seem to be successful in being elected … nor in attaining higher elected ATSIC office’. Though ATSIC has been abolished it may be extrapolated from the evidence that in both Canada and Australia a dual exclusion of Aboriginal women from Indigenous and non-Indigenous political structures and leadership positions does occur within liberal democracies. Again, this is important for future discussions about representative voices because of the experience in Canada of the exclusion of Aboriginal women from constitutional negotiations.
Megan Davis is Director of the Indigenous Law Centre and Senior Lecturer, Faculty of Law, University of New South Wales. She is completing her Doctorate in Law at the Australian National University examining the obstacles to achieving true self-determination for Aboriginal women in Australian democracy. The Australian Research Council awarded the Director Indigenous Researchers Development Scheme funding to undertake this research in 2007.
 See generally, Fiona Paisley, Loving Protection?: Australian Feminism and Aboriginal Women's Rights, 1919-1939 (2000); Anne Pattel-Gray, ‘The Hard Truth: White Secrets, Black Realities’ (1999) 14 Australian Feminist Studies 260-266; Alison Holland, ‘The Campaign for Women Protectors: Gender, Race and Frontier Between the Wars’ (2001) 16 Australian Feminist Studies 27-42; Wendy Shaw, ‘(Post) Colonial  Encounters gendered racialisations in Australian courtrooms ’ (2003) 10 Gender, Place & Culture: A Journal of Feminist Geography 315-332.
 Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2005 (2005); Aboriginal & Torres Strait Islander Social Justice Commissioner, Social Justice Report 2004.
 Penelope Andrews, ‘Violence against Aboriginal women in Australia: possibilities for redress within the International human rights framework’ (1997) 60 Albany Law Review 917, 918.
 ‘State’ in this article refers to the nation-state.
 See generally, Gregory H Fox and Brad R Roth (ed), Democratic Governance and International Law (2000) 532.
 See generally, Chapter 3, Indigenous Women and Access to Legal Services, Access of Indigenous Australians to Law and Justice Services, Indigenous Law and Justice Inquiry Final Report (22 June 2005); Submission to the Northern Territory Law Reform Committee Inquiry into Aboriginal Customary Law in the Northern Territory, Sex Discrimination Commissioner of the Human Rights and Equal Opportunity Commission (May 2003).
 See generally, Megan Davis and Hannah McGlade, International Human Rights Law and the Recognition of Aboriginal Customary Law, (2005) (Background Paper for the Western Australia Law Reform Commission); Audrey Bolger, Aboriginal Women and Violence (1991).
 Jackie Huggins, ‘Black women and women’s liberation’ in S Gunew (ed), A Reader in Feminist Knowledge (1994) 6-12; Aileen Moreton-Robinson, Talkin’ Up to the White Woman: Aboriginal Women and Feminism (2002); Larissa Behrendt, ‘Aboriginal Women and the White lies of the Feminist Movement: Implications for Aboriginal Women in rights discourse’ (1993) 1 Australian Feminist Law Journal 27.
 Audrey Bolger, Aboriginal Women and Violence (1991); Sonia Smallacombe, ‘Speaking Positions on Indigenous Violence’ 2004 (30) Hecate 47-55; Boni Robertson, The Aboriginal and Torres Strait Islander Women’s Task Force on Violence Report (State of Queensland) (2000); Sharon Payne, ‘Aboriginal Women and the Law ’ in P W Easteal and S McKillop (eds), Women and the Law (Canberra: Australian Institute of Criminology, 1993); Sharon Payne, ‘Aboriginal Women and the Law’ in Chris Cunneen (ed) Aboriginal Perspectives on Criminal Justice (1992) 31,33; Judy Atkinson (ed), Beyond Violence: Finding the Dream (National Domestic Violence Education Program, Office of the Status of Women, Department of Prime Minister & Cabinet, 1990) 3, 17.
 ATSIC is the Aboriginal and Torres Strait Islander Commission.
 ‘In the Hands of the Regions – A New ATSIC’ A Report of the Review of the Aboriginal and Torres Strait Islander Commission (2003), 41.
 Larissa Behrendt, Sean Brennan, Lisa Strelein and George Williams, Treaty (2004).
 K Anderson (ed), Community and Nation. A Recognition of Being: Reconstructing Native Womenhood (2000).
 Indian Act, RSC 1985: Under the Indian Act an Aboriginal woman who married a non-Aboriginal man lost her membership and status as an Indian whereas if a Aboriginal man married a non-Aboriginal woman, his wife gained membership and status as a Indian. In 1985 there were amendments to the Indian Act (Bill C-31) that ended this discrimination but only partially dealt with the discriminatory effects of the Act.
 W Sanders J Taylor and K Ross ‘Participation and representation in ATSIC elections: a ten-year perspective’ No 198/2000 Centre for Aboriginal Economic Policy Research Australian National University, 16-17.
 Native Women’s Association of Canada v Canada,  SCJ No 93.