Storytelling in Our Legal System: Healing for the Stolen Generations

Abstract

This article argues that there would be transformative benefits from expanding opportunities for Indigenous storytelling within plural legal systems such as Australia. The article highlights the successful example of legal storytelling’s inclusion in the inquiry into Aboriginal and Torres Strait Islander people affected by forcible removals. Such removals were authorised under Australian Commonwealth, State, and Territory Aboriginal protection/welfare laws and policies. This history has entered the awareness of all Australians as resulting in ‘Stolen Generations’. Opportunities exist to expand legal storytelling beyond inquiries and royal commissions into the wider justice system. Embracing legal storytelling by Aboriginal and Torres Strait Islander people recognises their Voices are important. This need for Voice has become a constantly expressed desire, most recently manifested in the Uluru Statement.

Notes

1 Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Bringing Them Home April 1997 (‘Bringing Them Home’) 113, Confidential evidence 305.

2 See, for example, Richard Delgado, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’ (1989) 87(8) Michigan Law Review 2411; Richard Delgado and Jean Stefancic, ‘Critical Race Theory: An Annotated Bibliography (1993) 79 Virginia Law Review 461; Mari Matsuda, ‘Public Response to Racist Speech: Considering the Victim’s Story’ (1989) 87(8) Michigan Law Review 2320; H Elizabeth Dallam, ‘The Growing Voice of Indigenous Peoples: Their Use of Storytelling and Rights Discourse to Transform Multilateral Development Bank Policies’ (1991) 8 Arizona Journal of International & Comparative Law 117; David Papke (ed) Narrative and the Legal Discourse: A Reader in Storytelling and the Law (Deborah Charles Publications 1991).

3 The author acknowledges the distinct cultural identity of Indigenous peoples and uses the term Indigenous as a respectful recognition of this diversity. At other points in the analysis there is a preference to use ‘Aboriginal and Torres Strait Islander’ to give more specific context, again acknowledging the existence of distinct cultural identities and also the diversity of such culture throughout Australia.

4 Delgado and Stefancic above note 2 at 462.

5 See, for example, Jerrold R Brandell, ‘Stories and Storytelling in Child Psychotherapy’ (1984) 21(1) Psychotherapy: Theory, Research, Practice, Training 54; Linda E Moody and Mary Laurent, ‘Promoting Health through the Use of Storytelling’ (1984) 15 Journal of Health Education 8; Barbara Reed, ‘Storytelling: What It Can Teach’ (1987) 34(2) School Library Journal 35.

6 Delgado above note 2 at 2412.

7 Richard Delgado, ‘Storytelling for Oppositionists and Others: A Plea for Narrative’ in Richard Delgado and Jean Stefancic (eds) Critical Race Theory: The Cutting Edge (Philadelphia Temple University Press 2000) 60.

8 Daniel Solorzano and Tara Yosso, ‘“Critical Race Methodology” Counter-Storytelling as an Analytical Framework for Education Research’ (2002) 8(1) Qualitative Inquiry 23, 26.

9 Delgado above note 2 at 2412.

10 Toni Massaro, ‘Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?’ (1989) 87(8) Michigan Law Review 2099, 2101.

11 As above.

12 Delgado above note 2 at 2415.

13 Jane B Baron, ‘The Many Promises of Storytelling in Law: An Essay Review of Narrative and the Legal Discourse: A Reader in Storytelling and the Law’ (1991) 23 Rutgers Law Journal 79, 81.

14 Delgado above note 2 at 2414.

15 Sally Morgan, My Place (Seaver Books 1987).

16 As above at 294.

17 A leading example of this genre in mainstream publishing is Coral Edwards and Peter Read, The Lost Children: Thirteen Australians Taken from Their Aboriginal Families Tell of the Struggle to Find Their Natural Parents (Doubleday 1989). See also Alice Nannup, When the Pelican Laughed (Freemantle Arts Centre Press 1995). Other stories published after the Bringing Them Home Report include Doris Pilkington and Nugi Garimara, Rabbit-Proof Fence: The True Story of One of the Greatest Escapes of All Time (Hyperion Books 2002) and Mary Terszak, Orphaned by the Colour of My Skin – A Stolen Generation Story (Routledge 2007).

18 Edwards and Read above note 17 at 5.

19 Bringing Them Home above note 1.

20 As above at 20.

21 As above.

22 As above.

23 As above at 4.

24 As above at 131.

25 As above at Appendix 9.

26 Western Australia on 27 May 1997, South Australia on 28 May 1997, ACT on 17 June 1997, New South Wales on 18 June 1997, Tasmania on 13 August 1997, Victoria on 17 September 1997, Queensland on 26 May 1999 and the Northern Territory on 24 October 2001.

27 Australian Parliament House, House of Representatives, Matters of Public Importance, Apology to Australia’s Indigenous Peoples 13 February 2008, 167. Previously, on 26 August 1999, the then Prime Minister John Howard moved a motion which expressed regret, but importantly it did not contain an apology.

28 See, for example, Antonio Buti, ‘The Stolen Generations and Litigation Revisited’ (2008) 32 Melbourne University Law Review 382; Dylan Lino, ‘Monetary Compensation and the Stolen Generations: A Critique of the Federal Labor Government’s Position’ (2010) 14(1) Australian Indigenous Law Review 19; Chiara Lawry, ‘Moving Beyond the Apology: Achieving Full and Effective Reparations for the Stolen Generations’ (2010) 14(2) Australian Indigenous Law Review 1.

29 Aboriginal and Torres Strait Islander Healing Foundation, Bringing Them Home 20 Years On: An Action Plan for Healing 2017.

30 Bringing Them Home Report above note 1 at 19.

31 As above at 11.

32 (1997) 190 CLR 1.

33 (2000) 103 FCR 1.

34 Stephen Gray, ‘Holding the Government to Account: The Stolen Wages Issue, Fiduciary Duty and Trust Law’ (2008) 32 Melbourne University Law Review 115, 129.

35 (2000) 103 FCR 1, 13[5] and 14[12].

36 Lino above note 28 at 23.

37 Martin Flynn and Sue Stanton, ‘Trial by Ordeal: The Stolen Generation in Court’ (2000) 25 Alternative Law Journal 71; Jennifer Clarke, ‘Cubillo v Commonwealth’ (2001) 25 Melbourne University Law Review 218; Randall Kune, ‘The Stolen Generations in Court: Explaining the Lack of Widespread Successful Litigation by Members of the Stolen Generations’ (2011) 30(1) University of Tasmania Law Review 32.

38 [2010] 106 SASR 331.

39 At 427, [465].

40 Honni Van Rijswijk and Thalia Anthony, ‘Can the Common Law Adjudicate Historical Suffering?’ (2012) 36 Melbourne University Law Review 618.

41 See, for example, Stolen Generations of Aboriginal Children Act 2006 (Tas) and the NSW Stolen Generations Reparations Scheme.

42 Derrick A Bell Jr, ‘Brown v Board of Education and the Interest-Convergence Dilemma’ (1980) 93 Harvard Law Review 518, 523.

43 Supreme Court of Queensland, Equal Treatment Benchbook 2016 <https://www.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf> (last accessed 1 February 2020).

44 Diana Eades, ‘Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications’ (2008) November Current Issues in Criminal Justice 209.

45 As above at 216.

46 John Rawnsley, David Woodroffe, Eloise Culic, James Richardson and Lauran Clifton, ‘Cultural Competency in a Legal Service and Justice Agency for Aboriginal Peoples’ (2018–2019) 28(2) Legal Education Review 279.

47 As above at 279 and 291.

48 See, for example, Marcelle Burns, ‘Are We There Yet? Indigenous Cultural Competency in Legal Education’ (2018–2019) 28(2) Legal Education Review 215.

49 ICCLAP, Indigenous Cultural Competency for Legal Academics Program Final Report 2019 <https://ltr.edu.au/resources/ID14-3906_Burns_FinalReport_2019.pdf> (last accessed 1 February 2020). Also see Annette Gainsford and Su Robertson, ‘Yarning shares knowledge: Wiradyuri storytelling, cultural immersion and video reflection’ (2019) 53(4) The Law Teacher 500.

50 Uluru Statement from the Heart 26 May 2017 <https://www.referendumcouncil.org.au/resource> (last accessed 1 February 2020).

51 Dani Larkin and Kate Galloway, ‘Uluru Statement from the Heart: Australian Public Law Pluralism’ (2018) 30(2) Bond Law Review 1.

52 Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse, 15 December 2017.

53 Michael Cooke, ‘A Different Story: Narrative Versus ‘Question and Answer’ in Aboriginal Evidence’ (1996) 3(2) International Journal of Speech, Language and the Law 273.

54 Julie Cassidy, ‘The Stolen Generations – Canada and Australia: The Legacy of Assimilation’ (2006) 11(1) Deakin Law Review 131; Moana Jackson, ‘The Treaty and the Word: The Colonization of Maori Philosophy’ in Graham Oddie and Roy Perrett (eds) Justice Ethics and New Zealand Society (Oxford University Press 1992); Fiona C Ross, ‘On Having Voice and Being Heard: Some After-Effects of Testifying Before the South African Truth and Reconciliation Commission’ (2003) 3(3) Anthropological Theory 325.