tag:theconversation.com,2011:/id/topics/indigenous-customary-law-28250/articlesIndigenous customary law – The Conversation2023-05-19T00:24:50Ztag:theconversation.com,2011:article/2049062023-05-19T00:24:50Z2023-05-19T00:24:50ZNew Caledonia has had an indigenous body advise government since 1999. What can Australia learn?<figure><img src="https://images.theconversation.com/files/525263/original/file-20230509-29-ysdzdw.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C1599%2C1065&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Customary Senate, Nouméa, New Caledonia.</span> <span class="attribution"><span class="source">Eddie Wadrawane</span>, <span class="license">Author provided</span></span></figcaption></figure><p>As Australia prepares to vote in a referendum on an Aboriginal and Torres Strait Islander Voice to parliament later this year, what can we learn from similar models in our region?</p>
<p>New Zealand’s <a href="https://www.waitangitribunal.govt.nz/">Waitangi Tribunal</a> was established in 1975 as a “permanent commission of inquiry” on issues affecting Māori people. Despite resulting from a treaty, it has <a href="https://theconversation.com/australians-should-be-wary-of-scare-stories-comparing-the-voice-with-new-zealands-waitangi-tribunal-204676">no powers to veto legislation</a>.</p>
<p>We can also look to New Caledonia, a French territory northeast of Australia. It has its own version of a Voice to parliament, called the Customary Senate, which represents Kanaks, the territory’s First Peoples and its largest ethnic group at <a href="https://www.iwgia.org/en/kanaky-new-caledonia/4689-iw-2022-kanaky-new-caledonia.html">over 40%</a>.</p>
<p>The Customary Senate must be consulted by the territorial authorities on issues relating to Kanak identity, particularly in matters of customary civil status, and customary lands.</p>
<p>The Customary Senate, which has been sitting for more than 20 years, shows us a First Nations consultative body doesn’t pose a “threat” to democracy or the rule of law.</p>
<p>So how does it work?</p>
<h2>The Customary Senate</h2>
<p>New Caledonia has a unique government. It has a hierarchy of governance from French institutions in Paris, its own government with a Congress that sits in the capital Nouméa, as well as three provincial assemblies and local authorities.</p>
<p>There are differing views on moving to full independence from France. The 1998 Nouméa Accord signed with France, and included in the French Constitution, provided a timetable for independence. Three referendums have since been conducted, none of which has produced a vote in favour of independence – although the most recent referendum in 2021 was <a href="https://www.theguardian.com/world/2021/dec/12/new-caledonia-fears-of-unrest-as-polls-open-for-vote-on-independence-from-france">boycotted by most independence supporters</a>.</p>
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<p>The Customary Senate was established under the Nouméa Accord, and it <a href="https://www.dfat.gov.au/geo/new-caledonia/new-caledonia-country-brief">first sat</a> in 1999. It’s one institution in a long political process to recognise custom as the foundation of Kanak society. This means respecting cultural traditions, many of which date back more than 3,000 years, and norms of social behaviour that <a href="https://unc.nc/wp-content/uploads/2021/11/Understanding-New-Caledonia-Web-06-12-21.pdf">prioritise</a> clan duties and values, and hierarchies based on generations over individuals. This is all different from French law.</p>
<p>The Senate is an advisory body composed of representatives from each of the eight customary areas of the archipelago. </p>
<p>Members are appointed for five-year terms, most recently in 2020, and the president <a href="https://la1ere.francetvinfo.fr/nouvellecaledonie/senat-coutumier-4-choses-a-savoir-sur-la-designation-du-president-de-l-institution-1362206.html">rotates</a> yearly between the customary areas. Candidates are nominated by local customary councils, which are the direct representatives of the customary world.</p>
<p>The Customary Senate must be consulted by the president of the New Caledonian government and the Congress, the presidents of the three provinces, or the French High Commissioner, on issues related to Kanak identity, custom and society.</p>
<p>It receives bills concerning such issues, and has two months to deliberate, with additional procedures in the case of disagreement.</p>
<p>But the Congress, not the Customary Senate, has ultimate authority under law.</p>
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Read more:
<a href="https://theconversation.com/why-new-caledonias-instability-is-not-just-a-problem-for-france-154567">Why New Caledonia's instability is not just a problem for France</a>
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<p>In 2014, the Customary Senate published a <a href="https://www.senat-coutumier.nc/phocadownload/userupload/nos_publications/charter_english_version.pdf">Charter of the Kanak People</a> aimed at structuring and formalising an alternative to French administrative organisation, and to promote Kanak values. Although this charter lacks legal status, it inspires legal proceedings and judgements. Across the archipelago, those of Kanak origin are governed in matters of civil law by their customs. Disputes that end up in court, for example, have customary assessors present who advise and assist legal representatives.</p>
<p>The name “Customary Senate” is not trivial in a territory still subject to French republican law. Indeed, some feel there’s an unrealised political project for it to become a second chamber of government, as exists in Paris or Canberra. In March this year, the Senate <a href="https://la1ere.francetvinfo.fr/nouvellecaledonie/le-senat-coutumier-cree-une-instance-autochtone-de-discussions-pour-preparer-l-avenir-institutionnel-1381046.html">created</a> an Indigenous discussion forum to debate the end of the Nouméa Accord.</p>
<p>Resolution of the complex debates surrounding the governance of New Caledonia will decide the Customary Senate’s future. Questions of First Nations sovereignty and independence currently remain unresolved.</p>
<p>Independence supporters have a political majority in two out of three <a href="https://www.newcaledonia-business.com/political-framework">provinces</a>, and strong representation and leadership in the Congress. The president of the Congress is from a pro-independence party, and the president of the current government, Louis Mapou from the Party of Kanak Liberation, also supports independence. </p>
<h2>Implications</h2>
<p>As Kanak society changes over time, the Customary Senate could also play a role in the adjustment of customary norms, particularly in regard to the place of women in society. It’s already a meeting-place between Kanak clan-based customary consensus and Western democracy, according to its current director of culture, Louis Waia. Discussions are needed to open the Customary Senate to women and younger people, both urban and rural. At present, only (older) men serve in the Senate.</p>
<p>Australian Minister for Foreign Affairs Penny Wong <a href="https://pina.com.fj/2023/04/17/mapou-to-welcome-australias-foreign-minister-to-new-caledonia/">visited New Caledonia</a> in April this year, attending the Customary Senate <a href="https://www.foreignminister.gov.au/minister/penny-wong/speech/address-new-caledonias-congress">and the Congress</a>.</p>
<p>She said in 2022 that she’s “determined to see First Nations perspectives at the heart of Australian foreign policy”, and has now <a href="https://www.dfat.gov.au/international-relations/themes/indigenous-peoples/ambassador-first-nations-people">appointed</a> an Ambassador for First Nations People. </p>
<p>The minister is aware of New Caledonia’s system of political representation and how independence supporters have recently received a <a href="https://www.lowyinstitute.org/the-interpreter/france-tightens-screws-new-caledonia">negative</a> reception from the Macron government in negotiations in Paris. Officially, Australia remains neutral on these <a href="https://la1ere.francetvinfo.fr/avenir-institutionnel-de-la-nouvelle-caledonie-les-discussions-s-achevent-sans-grande-avancee-1385334.html">disputed governance arrangements</a>.</p>
<p>Nonetheless, the Australian Voice to parliament campaign can learn from, and support, these struggles taking place in its multicultural Pacific neighbour.</p><img src="https://counter.theconversation.com/content/204906/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Matthias Kowasch is affiliated with University College of Teacher Education Styria (Austria) and Inland Norway University of Applied Sciences (Norway). He is also member of the research group Chôros (France).</span></em></p><p class="fine-print"><em><span>Simon Batterbury receives funding from the University of Melbourne and the British Academy. </span></em></p><p class="fine-print"><em><span>Eddie Wayuone Wadrawane and Isabelle Merle do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s important to understand that a First Nations consultative body such as the Customary Senate doesn’t pose a ‘threat’ to democracy or the rule of law.Eddie Wayuone Wadrawane, Associate Lecturer, Université de Nouvelle CalédonieIsabelle Merle, Directrice de recherche au CNRS (CNRS, CREDO, UMR 7308), histoire de la colonisation, histoire du Pacifique et de la Nouvelle-Calédonie,, Aix-Marseille Université (AMU)Matthias Kowasch, Professor of Didactics in Geography, Pädagogische Hochschule Steiermark Simon Batterbury, Associate Professor, Environmental Studies & Convenor, Melbourne Climate Futures Academy, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1217712019-08-20T13:04:43Z2019-08-20T13:04:43ZHow a chief defied apartheid and upheld democracy for the good of his people<figure><img src="https://images.theconversation.com/files/288184/original/file-20190815-136222-34o1j9.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Inkosi Mhlabunzima Maphumulo, right, with Dali Mpofu and Winnie Mandela in 1989. </span> <span class="attribution"><span class="source">Thobekile Maphumulo Family Papers, Author provided (No reuse)</span></span></figcaption></figure><p>The recently released report of President Cyril Ramaphosa’s <a href="http://www.thepresidency.gov.za/press-statements/president-ramaphosa-appoints-advisory-panel-land-reform">advisory panel</a> on land reform, and the latest efforts to force through <a href="https://theconversation.com/south-africa-still-has-a-long-way-to-go-to-settle-traditional-leadership-challenges-119009">two controversial traditional authority bills</a>, point to the continued legacies of changes to the relationship between traditional leaders, their followers, and land in South Africa’s history. </p>
<p>The panel calls for a resolution to the “<a href="https://www.gov.za/documents/final-report-presidential-advisory-panel-land-reform-and-agriculture-28-jul-2019-0000">contending philosophies around land tenure</a>” — those of individual rights and those of communalism. But as traditional leaders <a href="https://www.enca.com/news/contralesa-back-zulu-king-ingonyama-issue">fight to continue their control</a> over communally held land, there also needs to be a recognition that there are contending philosophies of traditional leadership. At times, these overlap.</p>
<p>This was evident at the meeting between a delegation from the Congress of Traditional Leaders of South Africa (Contralesa) and the then exiled African National Congress (ANC) in Lusaka, Zambia 30 years ago – on 18 August 1989.</p>
<p>The meeting released a joint memorandum. In it the parties called upon traditional leaders in South Africa to refuse to implement apartheid. The <a href="https://web.archive.org/web/20110427125959/http://www.anc.org.za/show.php?id=3843">document</a> recognised the profound effects of apartheid on South Africa’s traditional leaders: </p>
<blockquote>
<p>From leaders responsible and responsive to the people, you are being forced by the regime to become its paid agents. From being a force for unity and prosperity you are turned into perpetrators of division, poverty and want among the oppressed. The so-called <a href="https://www.sahistory.org.za/article/homelands">homeland system</a>, land deprivation, forced removals and the denial of basic political rights – all these and more are the anti-people policies that the white ruling clique forces the chiefs to implement on its behalf.</p>
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<h2>Contending views of chieftancy</h2>
<p>The ANC and the Contralesa delegation called on a historical understanding of traditional authority in which a leader’s authority came from their followers. This understanding is embodied by the isiZulu proverb <em>inkosi yinkosi ngabantu</em> (a chief is a chief by the people who <em>khonza</em> him, or pay allegiance to him). <em>Ukukhonza</em> is a practice of political affiliation. It is one that binds chiefs and their subjects and allows for accountability.</p>
<p>Colonialism and apartheid sought to make traditional leaders accountable to white officials by tying them to land. Historian Percy Ngonyama called this <em>inkosi yinkosi ngendawo</em> (a chief is a chief by territory). Doing so effected territorial segregation. It also allowed white officials to govern through a mimicry of pre-existing political structures.</p>
<p>Colonial officials came to interpret <em>ukukhonza</em> as a practice of subservience. But in fact, historically, this was a reciprocal practice. Paying allegiance to a chief came with expectations of physical and social security.</p>
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<img alt="" src="https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=797&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=797&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=797&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1002&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1002&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287997/original/file-20190814-136176-ywjj73.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1002&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p>My recent <a href="http://www.ukznpress.co.za/?class=bb_ukzn_books&method=view_books&global%5Bfields%5D%5B_id%5D=552">book</a>, To Swim with Crocodiles: Land, Violence and Belonging in South Africa, 1800 - 1996, is a history of <em>ukukhonza</em>. It shows how even as colonialism and apartheid sought to break down personal bonds of <em>ukukhonza</em>, people used knowledge about the practice to make claims on land and on their leaders. </p>
<p>In the case of Inkosi Maphumulo, the claims were for physical security in times of violence.</p>
<h2>Inkosi Mhlabunzima Maphumulo</h2>
<p><a href="https://www.sahistory.org.za/people/mhlabunzima-joseph-maphumulo">Inkosi (Chief) Mhlabunzima Maphumulo</a> (1949-1991) led the Contralesa delegation to Lusaka. He governed in the Table Mountain region, an area just outside of Pietermaritzburg, in KwaZulu-Natal. His life, tragically cut short by an apartheid hit squad, provides insight on these overlapping concepts of chiefly authority – <em>inkosi yinkosi ngabantu</em> and <em>inkosi yinkosi ngendawo</em>. </p>
<p>Inkosi Maphumulo was the fourth chief of a colonially created chiefdom that from its genesis in 1905 was tied to land south of the <a href="http://www.dwaf.gov.za/iwqs/rhp/state_of_rivers/state_of_umngeni_02/history.html">Umngeni River</a> at <a href="https://www.google.com/search?rlz=1C1NHXL_enZA711ZA711&q=table+mountain+pietermaritzburg&tbm=isch&source=univ&sa=X&ved=2ahUKEwiNz9T18f_jAhVKJVAKHbBzCQUQsAR6BAgGEAE&biw=1261&bih=636">Table Mountain</a>. The existence of two types of chiefdoms served to “divide and rule”. It pitted leaders who saw themselves as having historical authority against those with new authority from the colonial regime. </p>
<p>From his installation in 1973, he carried out the duties of the chieftaincy within the structures of the nascent KwaZulu bantustan. The so-called <a href="https://www.sahistory.org.za/article/homelands">“bantustans” or “homelands”</a> were the ultimate level of the three tiered system of governance designed to ensure segregation in South Africa – not only on racial, but also ethnic lines. The bantustans built on so-called <a href="https://repository.up.ac.za/bitstream/handle/2263/24222/02chapter2.pdf?sequence=3&isAllowed=y">tribal authorities</a> such as that of the region Maphumulo governed. </p>
<p>One of Inkosi Maphumulo’s priorities was to provide land to his subjects during a time when territorial segregation constrained black South Africans’ access to land. He tirelessly pursued a contested strip of land that bisected his territory but, according to apartheid-defined boundaries, fell neither under his control nor that of a neighbouring chief.</p>
<p>The government gazette that outlined the boundaries of the Inkosi Maphumulo Tribal Authority in 1957 made its leaders chiefs by land. Colonial officials had been putting down boundaries in Natal for over 100 years. But apartheid’s <a href="https://www.sahistory.org.za/archive/bantu-authorities-act%2C-act-no-68-of-1951">Bantu Authorities</a> finalised this process and fully bounded chiefdoms. </p>
<p>But Inkosi Maphumulo was a leader who did not forget the responsibilities of chief by the people, even as he pursued land to allocate to his followers. By the time he flew to Lusaka, he had become known as the “peace chief”. </p>
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<img alt="" src="https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/287938/original/file-20190813-9389-k5lnqo.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Maphumulo the peace maker.</span>
<span class="attribution"><span class="source">New African, April 17, 1989</span></span>
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<p>As violence spread across the Natal Midlands from 1985 in a state-sponsored civil war, Inkosi Maphumulo organised peace initiatives. And, through Contralesa, he set up a commission of inquiry into the causes of the conflict. </p>
<p>He spoke out against police partiality and cooperation with Inkatha, which was engaged in a deadly conflict with the ANC and the broader liberation movement. He also welcomed refugees of all political affiliations from war torn townships onto land at Table Mountain. He described the process by which this happened to the press:</p>
<blockquote>
<p>People are not made to pay money to live in the area, but in our tradition they are expected to pay ‘khonza’—a tribute to the chief… A goat is sufficient for ‘khonza’ but if a person does not have one, then a small amount of money, depending on the person’s circumstances, is expected.</p>
</blockquote>
<h2>Land and belonging</h2>
<p>Inkosi Maphumulo spoke of rights to land as tied to belonging in a chiefdom, a process facilitated by <em>ukukhonza</em>. There was a slight hitch. The neighbouring Nyavu chiefdom, who claimed precedence in the region – to the time of King Shaka, if not before – believed the land onto which Maphumulo located refugees belonged to them. </p>
<p>While Inkosi Maphumulo sought to provide expected security to his followers, both old and those who newly paid allegiance to him, his neighbours and some among his followers who contested his chieftaincy saw the newcomers as interlopers. Peace would <a href="http://disa.ukzn.ac.za/sites/default/files/pdf_files/aff00000000.043.027.pdf">not remain</a> at Table Mountain.</p>
<p>As the violence spread to the area, people used the cultural inheritance of <em>ukukhonza</em> to define who had access to the contested land, and who could expect security from their chief. Inkosi Maphumulo believed himself responsible for the new residents because they had paid allegiance to him. As the conflict raged, he reflected:</p>
<blockquote>
<p>I had done all I could to ensure peaceful coexistence in my area. What had I done wrong?</p>
</blockquote>
<p>He sought to expand his territory, but respected the demands of <em>ukukhonza</em> with his attempts to promote political tolerance, provide a safe haven, and end the violence.</p>
<h2>Chiefaincy and land reform</h2>
<p>Inkosi Maphumulo did not live to see the dawning of democracy in South Africa. But these overlapping concepts of chief by the people and chief by land embodied in his leadership need to be brought to the forefront in current discussions about traditional authority and land reform. </p>
<p>Even after the territorial rule of colonialism and apartheid took hold among chiefs, Inkosi Maphumulo’s belief in the concept of <em>inkosi yinkosi ngabantu</em> spurred him to pursue peace and promote political tolerance.</p>
<p>Enshrining the control of land by traditional leaders in <a href="https://mg.co.za/article/2019-08-07-secret-details-of-the-land-deal-that-brought-the-ifp-into-the-94-poll?fbclid=IwAR1crtWUQX3RseTPGSua0-0FRZhRv7niLms6KJQBe0tv5bIg8tcNF4TWCkc">recent</a> and newly proposed laws gives precedence to the <em>inkosi yinkosi ngendawo</em> of colonial and apartheid rule at the expense of the people of <em>inkosi yinkosi ngabantu</em>.</p><img src="https://counter.theconversation.com/content/121771/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jill E. Kelly's research has been supported by the American Council of Learned Societies (2015) and Fulbright (2010-2011, 2018-2019). </span></em></p>Colonialism and apartheid sought to make traditional leaders accountable to white officials by tying them to land.Jill E. Kelly, Associate Professor of History, Southern Methodist UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/755682017-05-13T10:21:50Z2017-05-13T10:21:50ZFailure to recognise religious marriages in South Africa may point to a lack of political will<figure><img src="https://images.theconversation.com/files/168089/original/file-20170505-21003-1kj40p3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Shutterstock</span> </figcaption></figure><p>South Africa’s <a href="http://www.saflii.org/za/cases/ZACC/2015/24.pdf">constitution</a> allows for laws to be passed that recognise religious and traditional marriages as well as personal and family law systems. These are systems that regulate marriage, divorce, matters affecting children - including guardianship, custody, access, maintenance and inheritance.</p>
<p>This is a radical departure from the colonial and apartheid era when South Africa’s common law definition of marriage was seen simply as a union between one man and one woman. In other words, a legal marriage in South Africa was characterised by <a href="https://en.oxforddictionaries.com/definition/heteronormative">heteronormativity</a> and monogamy. Same-sex marriages and potentially polygynous marriages were excluded from the legal definition of marriage. This affected African customary marriages, Muslim marriages, Jewish marriages and Hindu marriages, which are all potentially polygynous.</p>
<p>The situation changed in the post-1994 democratic era. A <a href="http://www.sahistory.org.za/article/customary-marriages-south-africa-understanding-recognition-customary-marriages-act-1998">law was passed in 1998</a> that afforded African customary marriages full legal recognition. And the <a href="https://www.acts.co.za/iframe/civil-union-act-2006/index.html">Civil Union Act</a> made marriages between same-sex couples legally possible.</p>
<p>Yet, potentially polygynous marriages such as Muslim marriages, Hindu marriages and Jewish marriages have not yet been afforded legal recognition. This failure is tantamount to saying that religious marriages are inferior and less deserving of legal protection. It infringes the rights to dignity, freedom of religion and equality of spouses in religious marriages and children born within those marriages. </p>
<p>Women are particularly badly affected. Take the case, for instance, of a Muslim wife who has a substantially smaller estate than her husband. She could be left financially destitute should the marriage end in divorce. Yet, she has no recourse under South African law because her marriage is not legally recognised. </p>
<p>Muslim women are also at a disadvantage because polygyny isn’t regulated. This means that men can enter into subsequent marriages without their knowledge. Women also have difficulty accessing a Muslim divorce even though their right to divorce is recognised under Islamic law. This results in them being held hostage in unwanted marriages.</p>
<p>The fact that the absence of laws pertains to minority religions in South Africa – Muslims make up <a href="http://www.statssa.gov.za/publications/P0318/P03182013.pdf">2%</a> of South Africa’s population, Hindus 1% and Jews 0.2% – is no excuse for the failure of government to protect them.</p>
<p>This article deals mainly with the challenges facing Muslim women, which is the subject of a court challenge.</p>
<h2>Working for equality</h2>
<p>There have been numerous efforts to afford recognition to Muslim marriages. None, however, have been successful. </p>
<p>The first was in 2003 when the South African Law Reform Commission submitted the <a href="https://muslimality.files.wordpress.com/2011/01/muslim-marriages-bill-2010-doc.pdf">Muslim Marriages Bill</a> to the Ministry of Justice and Constitutional Development. </p>
<p>The bill followed substantive consultations with the Muslim community and civil society. But it was viewed as unIslamic by some clergy which meant it was shelved.</p>
<p>This was followed by an attempt on the part of the <a href="http://www.cge.org.za/">Commission on Gender Equality</a> and the Department of Justice and Constitutional Development, which drafted the Recognition of Religious Marriages Bill. The bill recommended recognition of all religious marriages. There were no considerable consultations around the bill which meant that it didn’t elicit much support.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=522&fit=crop&dpr=1 754w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=522&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=522&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Muslim wives are unfairly discriminated against in divorce.</span>
<span class="attribution"><span class="source">Reuters/Mike Hutchings</span></span>
</figcaption>
</figure>
<p>After years of inaction, a concerted campaign by a civil rights group, the <a href="http://wlce.co.za/">Womens’ Legal Centre Trust</a> led to the Department of Justice and Constitutional Development finally turning its attention to the Muslim Marriages Bill. In 2010, an amended version of the bill was approved by cabinet. This meant that it could enter the parliamentary process. </p>
<p>But this has still not happened. The Ministry of Home Affairs appears unwilling to table the bill because there’s less support for it – changes were made without consultation with the Muslim community – as well as the fact that it flouts the commitment to gender equality under the <a href="http://www.gov.za/documents/constitution/chapter-2-bill-rights">constitution</a>. For example, the bill does not afford equal rights to divorce between Muslim women and men, to the disadvantage of women.</p>
<p>Lack of support for the amended bill may appear to be a reasonable justification for not pursuing it in parliament. But it does not explain the delay in enacting the bill prior to 2010 when the 2003 version of the bill appeared to have support among many of the Muslim clergy.</p>
<p>The delay may point to a lack of political will on the part of government. </p>
<h2>Challenges</h2>
<p>The legislative options on the table would ensure women were better protected. But they also pose challenges.</p>
<p>The recommendation by the Recognition of Religious Marriages Bill for self-regulation of religious marriages means that existing discriminatory religious rules and practices could be allowed to continue within religious communities.</p>
<p>At the same time, the bill’s recommendation that dissolution of religious marriages must be regulated through the Divorce Act could ensure formal equality between spouses. Yet, it might not engender substantive equality since it wouldn’t regulate existing discriminatory religious divorce rules and practices.</p>
<p>While Muslim, Hindu and Jewish wives could obtain a civil divorce through the bill, they may be constrained from getting a religious divorce. They would therefore be deemed to still be married under religious law thus preventing them from concluding further religious marriages. Yet, their husbands would be able to enter subsequent marriages due to the polygynous nature of their religious marriages. </p>
<p>In contrast, the Muslim Marriages Bill recognises existing Muslim rules and practices, including discriminatory ones. But it purports to regulate them in a way that affords protection to women. For example, the bill proposes to regulate polygyny in accordance with the Qur’anic precept of equality and requires existing wives to be notified of their husbands’ intention to marry again. </p>
<p>The bill further purports to regulate a man’s right to arbitrarily divorce his wife by requiring him to follow due process. Moreover, the bill recognises various forms of Muslim divorce including those available to women under Islamic law. If enacted, it would allow women to enforce Islamic law rights that they are presently unable to access. </p>
<p>The bill, therefore, potentially offers more protection for women than they otherwise have as a result of non-recognition of their Muslim marriages. </p>
<h2>Challenging injustice</h2>
<p>The Women’s Legal Centre Trust has again launched an application asking the Western Cape High Court to compel government to recognise Muslim marriages. The matter has been set down for <a href="http://www.news24.com/SouthAfrica/News/legality-of-muslim-marriage-a-religious-human-rights-issue-divorcee-20170324">28 August 2017</a>. </p>
<p>This is an unprecedented case and its outcome will have far-reaching consequences. </p>
<p>Will the judiciary have the courage to act where government has thus far failed?</p><img src="https://counter.theconversation.com/content/75568/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Waheeda Amien received funding from the National Research Foundation.</span></em></p>Although South Africa has taken steps to rid itself of the apartheid-era view of marriage as only heterosexual and monogamous, discrimination against religious marriages persist.Waheeda Amien, Associate Professor in Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/603702016-06-09T20:09:30Z2016-06-09T20:09:30ZWhy Australia won’t recognise Indigenous customary law<figure><img src="https://images.theconversation.com/files/125814/original/image-20160609-3488-qso5a5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Most people against recognising Aboriginal customary law think there’s only one law in Australia.</span> <span class="attribution"><span class="source">AAP/Joe Castro</span></span></figcaption></figure><p>While the Australian Law Reform Commissions’s <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">1986 report</a> on the use of customary law for Aboriginal people was a great initiative, it was, in hindsight, a notion well before its time. Although 30 years have elapsed since the report was published, its recommendations have, by and large, been ignored.</p>
<p>Few in Australia understand the context and true meaning of customary law. Denials of its validity are often based on ignorance or on specific examples devoid of context; the severity of “spearing” for example, as being contrary to human rights norms. </p>
<p>This is akin to rejecting the common law based solely on, say, the use of lethal injections to execute prisoners in the United States. </p>
<h2>Terra what?</h2>
<p>Most people against recognising Aboriginal customary law think there’s only one law in Australia. This is clearly wrong both conceptually and in practice. As Australia is a federation made up of multiple jurisdictions, it necessarily has a multiplicity of laws. </p>
<p>What they are really saying is that Australia should exclude Aboriginal and Torres Strait Islander customary law (and arguably all non-Anglocentric laws). Consciously or otherwise, their rejection is based on first contact between settler and Indigenous Australians.</p>
<p>International law of the 1700s required that, for settlement, a tract of land be “substantially uninhabited”. Herein lies the genesis of Indigenous invisibility in Australia. </p>
<p>In practice, “substantially uninhabited” meant it was inhabited by a people who would not cultivate the proverbial yard of land, and who were not governed by laws. This notion of <a href="http://www.austlii.edu.au/au/orgs/car/docrec/policy/brief/terran.htm"><em>terra nullius</em></a> is clearly a legal fiction, devoid of both truth and ethics. </p>
<p>The ultimate source of the prevailing prejudice and ignorance in Australia, <em>terra nullius</em> is utterly unconnected to the reality of the presence on this continent of the longest continually living human cultures. But the notion is firmly ensconced and entrenched in the Australian Constitution nonetheless.</p>
<p>Aboriginal and Torres Strait Islander societies could not have survived if they were lawless. In fact, the word law is so prevalent in Indigenous parlance and imagination that one must plug one’s ears to not notice Aboriginal and Torres Strait Islander love for law. </p>
<p>The early settlers’ lust for land provided an effective such plug, one which stilled their consciences and humanity as they attempted to destroy a civilised, law-abiding people. Despite these efforts, customary law always was, and still is, observed on the Australian continent.</p>
<p>What, then, constitutes customary law? With several peoples, languages and cultures sharing the continent, there are clearly many different laws. For our purpose here, we can recognise that law is an abstract concept: that it is essentially about the regulation of people, their societies, and relations with their neighbours (broadly defined). </p>
<p>Specifics may vary, but there’s a large variety of laws nonetheless. Consider speed limits in the Australian Capital Territory and New South Wales, for instance. The notion of regulating speed through law is common to both jurisdictions, even if maximum speeds are different. </p>
<h2>Then, Mabo</h2>
<p>Despite the fact that it’s an obvious untruth, the notion <em>terra nullius</em> is entrenched in the Constitution and, until 1992, was firmly a part of Anglo-Australian law. But among the custodians of the common law are judges who set about doing what they could to recognise Indigenous custom, rights and interests.</p>
<p>In 1971, Chief Justice Blackburn of the Northern Territory Supreme Court <a href="http://www.atns.net.au/agreement.asp?EntityID=1611">recognised that the Gove Peninsula</a> in the northeastern corner of Arnhem Land was occupied by a people truly given to the rule of law, a civilised law that was not the common law. </p>
<p>But the NT Court was bound by Privy Council precedent in the NSW case <a href="http://www.bailii.org/uk/cases/UKPC/1889/1889_16.html">Cooper v Stuart</a>. That case had established the notion of <em>terra nullius</em> in law and covering the whole continent. The NT Supreme Court decision was frustrated. </p>
<p>Still, the Supreme Court’s recognition arguably allowed federal Attorney-General Bob Ellicott to examine the possibility of a broader recognition of Indigenous customary law, prompting the ALRC report. But the consequences of <em>terra nullius</em> appear to have prevailed and the report was, for the most part, shelved.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=871&fit=crop&dpr=1 600w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=871&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=871&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1094&fit=crop&dpr=1 754w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1094&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/125815/original/image-20160609-3485-1cww0c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1094&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The High Court’s Mabo decision recognised Indigenous Australians as the continent’s first inhabitants.</span>
<span class="attribution"><span class="source">AAP/Crystal Ja</span></span>
</figcaption>
</figure>
<p>Legislative changes in the 1980s allowed the High Court in 1992 to recognise Indigenous Australians as the first people of the continent in the landmark <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html">Mabo case</a>. Parliament followed suit by establishing a legislative framework for native title claims.</p>
<p>Since 1992, common law has admitted the existence of Indigenous customary laws, which inhered in another normative system. But, to date, the use of Indigenous custom in matters such as sentencing, including through in circle courts, remains sparse, patchy and inadequate. </p>
<p>Formal recognition of Aboriginal and Torres Strait Islander people in the Constitution will pave way for negotiations and a sustained dialogue between the civilisations, including for significant levels of self-determination. </p>
<p>Self-determined communities, within some contemporary constraints, can determine the laws they will use. When these discussions result in the use by Aboriginal and Torres Strait Islander people of their customary law, we can proudly say that we are truly reconciled.</p>
<hr>
<p><em>This article is part of a <a href="https://theconversation.com/au/topics/indigenous-customary-law">special package marking the 30th anniversary</a> of the Australian Law Reform Commission’s report on Aboriginal customary law.</em></p><img src="https://counter.theconversation.com/content/60370/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>AJ Wood does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Few in Australia understand the context and true meaning of customary law. Denials of its validity are often based on ignorance or on specific examples devoid of context.AJ Wood, Senior Lecturer in Law, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/601932016-06-09T20:09:21Z2016-06-09T20:09:21ZFrom little things: the role of the Aboriginal customary law report in Mabo<p>The <a href="https://www.alrc.gov.au/publications/2.%20The%20Commission%E2%80%99s%20Work%20on%20the%20Reference/special-needs-consultation-and-discussion">Recognition of Aboriginal Customary Laws</a> report was released by the Australian Law Reform Commission (ALRC) in June 1986, after an intensive, nine-year inquiry. </p>
<p>The report examined the interaction between two legal systems – one based in British law “received” at colonisation and the other in the customary laws of the Aboriginal peoples of Australia. </p>
<p>In a post-Mabo Australia, the significance of the core question about “recognition” of Aboriginal customary law no longer seems so world-defining. It’s difficult to re-enter the view that admitted little challenge to the centrality of <a href="http://www.alrc.gov.au/publications/report-31">one law for Australia</a> – or for the <a href="https://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/5-recognition-aboriginal-cust">foundational legal position</a> that Australia was a settled colony and uninhabited (<em>terra nullius</em>).</p>
<h2>What the report did</h2>
<p>The ALRC investigated whether:</p>
<blockquote>
<p>… it would be desirable to apply, either in whole or in part, Aboriginal customary law to Aborigines — generally or in particular areas or to those living in tribal communities only. </p>
</blockquote>
<p><a href="https://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/terms-reference">Its report</a> was wide-ranging: considering Aboriginal customary law in the pre-European period, and in the aftermath of colonisation. </p>
<p>It probed why there was a failure to recognise Aboriginal customary law within Australian law. It canvassed ways in which the legal system might recognise Aboriginal customary law in areas such as criminal law and sentencing, marriage laws and customary adoption, and in Aboriginal property distribution. </p>
<p>The report resonated with a concern for human rights, and reflects the equality and anti-discrimination <a href="https://www.alrc.gov.au/publications/12-promoting-claims-resolution">principles</a> incorporated into Australian law in the previous decade.</p>
<p>It analysed whether Aboriginal customary laws could be applied in criminal cases and whether Aboriginal communities should be able to <a href="https://www.alrc.gov.au/publications/Recognition%20of%20Aboriginal%20Customary%20Laws%20%28ALRC%20Report%2031%29/17-aboriginal-customary-laws-">apply their laws</a> in the punishment and rehabilitation of community members. </p>
<p>The application of customary law in criminal proceedings (including proof and evidence), and the development of indigenous community courts have progressed since then. We have experimented with customary law in sentencing, and with Indigenous community courts (Koori Courts in Victoria). Still, reforms have not been as extensive as it has in countries like Canada.</p>
<h2>The report’s recommendations</h2>
<p>No recommendations were made regarding the recognition of customary laws as the basis for Aboriginal land rights. The ALRC report followed the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/alrta1976444/">Aboriginal Land Rights (Northern Territory) Act</a>, and land rights legislation in some states. </p>
<p>The broader legal position remained that Australia was “uninhabited” at settlement. That view was not displaced until <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1992/23.html?stem=0&synonyms=0&query=title%28Mabo%20%29">the Mabo decision</a> in 1992.</p>
<p>But the <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">Recognition of Aboriginal Customary Law</a> report was vital to developing concepts around the recognition of Aboriginal traditional law and custom that played a role in that legal change.</p>
<p>Now, 30 years after its publication, the report remains the most-accessed ALRC publication, which indicates its pervasive influence in Australia’s legal system and society. Yet few of its recommendations have become actual law. </p>
<p>Further, there are still many different perspectives on the concept of “recognition” of customary law. Even the term customary law has origins in the British Empire. While for some it signifies a respectful identification of laws and customs grounded in another culture, for others it reinforces the power of the Australian legal system to set the terms on which the “customary system” is acknowledged. </p>
<h2>Connection to country</h2>
<p>Recognising Indigenous law remains controversial – as shown by debates about constitutional recognition of Aboriginal and Torres Strait Islander peoples. And, it has modern, practical implications – for example, for the use of traditional knowledge in the co-management of lands and waters.</p>
<p>Importantly, recognition of traditional law and custom giving rise to “connection” to land and waters is the central legal test for determining native title claims under the Native Title Act. </p>
<p>The ALRC <a href="https://www.alrc.gov.au/publications/alrc126">reviewed</a> that legislation from 2013 to 2015. It recommended reforms to the connection test, which requires Aboriginal and Torres Strait Islander peoples to show evidence they have remained a society that has continued to acknowledge (practice) their traditional law and customs, without substantial interruption, since before colonisation. </p>
<p>This is a demanding test. While some allowance is made for change to law and custom over time, difficult legal questions remain about how much change is possible for laws and customs to still be “<a href="https://www.alrc.gov.au/publications/5-traditional-laws-and-customs-0">traditional</a>”.</p>
<p>The ALRC’s <a href="https://www.alrc.gov.au/publications/alrc126">2015 report</a> recommended <a href="https://www.alrc.gov.au/publications/recommendations-3">changes</a> to the definition of native title to recognise that traditional laws and customs may adapt, evolve or otherwise develop. The earlier report had also emphasised the dynamic nature of Aboriginal customary law. </p>
<p>The 2015 report tackled the difficulties around showing evidence of Aboriginal and Torres Strait Islander peoples’ <a href="https://www.alrc.gov.au/publications/7-proof-and-evidence">traditional law and custom</a>, and recommended that native title rights for commercial purposes <a href="https://www.alrc.gov.au/publications/8-nature-and-content-native-title-0">be recognised</a>. It suggested reforms to strengthen the internal governance capacity of native title groups, while allowing for <a href="https://www.alrc.gov.au/publications/10-authorisation-0">traditional authority</a> to be exercised. </p>
<p>The Connection to Country report hasn’t receive the attention of the earlier inquiry, but if the Native Title Act is to help achieve a sustainable cultural and economic future for Aboriginal and Torres Strait Islander peoples, then recognition of the evolution of traditional law and custom is vital and further legal reform is needed.</p>
<p>The customary law report provided the basis for longer-term social change. It remains a rich source of knowledge of Aboriginal customary law and traditions, and set strong grounds for law reform.</p>
<hr>
<p><em>This article is part of a <a href="https://theconversation.com/au/topics/indigenous-customary-law">special package marking the 30th anniversary</a> of the Australian Law Reform Commission’s report on Aboriginal customary law.</em></p><img src="https://counter.theconversation.com/content/60193/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lee Godden has received past funding from the Australian Research Council (Linkage grants) related to the Agreements, Treaties and Negotiated Settlements project at The University of Melbourne. From 2013-15, she was the Commissioner leading an Inquiry into the Native Title Act 1993 for the Australian Law Reform Commission.</span></em></p>The Recognition of Aboriginal Customary Laws examined the interaction between two legal systems – one based in British law and the other in the customary laws of the Aboriginal peoples of Australia.Lee Godden, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/601872016-06-09T20:09:11Z2016-06-09T20:09:11ZLaw reports push piecemeal changes to native title, but still fall short<figure><img src="https://images.theconversation.com/files/125818/original/image-20160609-3513-t5h7l8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Country provides a site where Aboriginal and mainstream forms of law can come together and have dialogue – an outcome made possible by Eddie Mabo (L).</span> <span class="attribution"><span class="source">AAP/NAA</span></span></figcaption></figure><p>June 2016 marks two significant anniversaries for the relationship between Australia’s Indigenous and settler populations. June 12 is the 30th anniversary of the Australian Law Reform Commission’s (ALRC) publication of its report on <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">Aboriginal Customary Laws</a>; and June 3 marked 24 years since the Mabo ruling.</p>
<p>The <a href="http://www.alrc.gov.au/inquiries/aboriginal-customary-laws">ALRC report</a> uncovered a wealth of information on Aboriginal and Torres Strait Islander cultural practices. Its aim was to determine the desirability of applying – on the whole or in part – customary law to Indigenous Australians.</p>
<p>And the 1992 High Court ruling in the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html">Mabo case</a> was a game-changer; it consigned the legal fiction of <em>terra nullius</em> (the idea that Australia was uninhabited at the time of British colonisation) to the dustbin of history. </p>
<p>The ALRC report was an earnest attempt at acknowledging the existence and relevance of Aboriginal law and culture to Indigenous Australians. It stopped short of recommending special legislation recognising Aboriginal law, but it did make some useful recommendations about how settler law could deal more fairly with Aboriginal people by taking their traditions and customs into account.</p>
<h2>What did the reports call for?</h2>
<p>The political classes received the report with polite indifference. This fate befell another landmark inquiry, the Law Reform Commission of Western Australia’s (LRCWA) <a href="http://www.lrc.justice.wa.gov.au/P/project_94.aspx">1996 report</a> into Aboriginal customary laws, in which I was involved.</p>
<p>The WA inquiry, like the ALRC’s, examined the status of Aboriginal law. Less energy was spent deciding whether Aboriginal law still held force than on asking how settler and Indigenous law could be harmonised. </p>
<p>The LRCWA found Aboriginal law was a fact of life for Indigenous Australians. It governed social relations on a daily basis – whether other Australians condescended to “recognise” the fact or not.</p>
<p>The report suggested it was insulting to Aboriginal people for their law’s existence to be constantly doubted, or make them prove they had law whenever it piqued settler Australians’ curiosity. </p>
<p>This was also the finding of a 1994 <a href="https://www.nt.gov.au/justice/law/towards-mutual-benefit-an-inquiry-into-aboriginal-customary-law-in-the-northern-territory">Northern Territory Law Reform Committee inquiry</a>. It concluded Aboriginal law was a significant and positive force in daily life – not just for Indigenous people in remote areas, but also in rural and urban communities. </p>
<p>Elders and cultural bosses told the LRCWA they did not want their law codified and written down like white man’s law, because that would allow white law (or worse, white lawyers) to “own” Aboriginal law. This confirmed the ALRC’s view that codification was not an appropriate way of recognising customary laws. </p>
<p>Aboriginal people are consistent in saying they want their own laws, rituals and ceremonies left alone: to be passed down orally, not written down. They are convinced, despite all the damage inflicted by white colonisation to the fabric of Indigenous social and spiritual life, that Aboriginal law will endure. For them, white-fella law is just a tablecloth; black-fella law is the sturdy table beneath. </p>
<p>Aboriginal people were interested in discussing why they were discriminated against by the settler law and justice systems; why the rates of Aboriginal people, particularly youth, in jail were so catastrophically high; and why their own law and culture were denied jurisdiction. </p>
<p>Many of the LRCWA report’s recommendations concentrated on what it called “community justice mechanisms”, such as setting up Aboriginal courts (where elders sit with magistrates); community justice groups (where elders sit with police and other agencies to develop local diversionary strategies); and what it called “community-owned” programs run and managed by Aboriginal communities. </p>
<p>Ideas in the ALRC’s spirit also called for investment in what it called local justice mechanisms. </p>
<h2>How did Mabo change the game?</h2>
<p>If the ALRC inquiry was a kind of gentlemen’s duel conducted within the accepted rules of the game, then Mabo was pure shock and awe.</p>
<p>The legislative response to the Mabo decision led to the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/">Native Title Act</a>. This delivered “<a href="http://www.theage.com.au/articles/2004/04/16/1082055637245.html">bucket loads of extinguishment</a>”, in the words of Tim Fischer, as well as granting native title. </p>
<p>The demands the act places on claimants to demonstrate continuity work to undermine the very purpose and spirit of the legislation (and the Mabo judgment) by making native title tortuously difficult to determine. Nonetheless, Australia is reaching a post-determination era; significant parts of its land mass are subject to a determination. </p>
<p>But the problems for title-holders do not cease there. The Native Title Act denies holders the right to leverage their land title to develop economic activity. This stymies their capacity to build “on-country” enterprises that sustain culture while generating capital (such as native fruits and medicines), or create partnerships with businesses such as resource industries, on favourable terms. </p>
<p>The act also denies them a veto over development activities they deem inappropriate. </p>
<p>The recommendations of the ALRC’s 2015 <a href="https://www.alrc.gov.au/publications/alrc126">review of the Native Title Act</a> go some way to rectifying some anomalies. It focuses on <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/nta1993147/s223.html">Section 223</a> of the Native Title Act, which says native title rights and interests include, but are not limited to, hunting, gathering, or fishing, rights and interests. </p>
<p>The ALRC recommended inclusion of a “right to trade”. This may allow title-holders to make better commercial use of their lands. It also throws some weight behind the view that law and custom are not static but evolve over time. </p>
<p>Connection to country may offer some Aboriginal communities a stake in their economic future. Country also provides a place to heal the traumas of colonisation, and a site where Aboriginal and settler forms of law can come together and have dialogue – an outcome favoured by the ALRC and LRCWA, and made possible by Eddie Mabo.</p>
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<p><em>This article is part of a <a href="https://theconversation.com/au/topics/indigenous-customary-law">special package marking the 30th anniversary</a> of the Australian Law Reform Commission’s report on Aboriginal customary law.</em></p><img src="https://counter.theconversation.com/content/60187/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harry Blagg does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The ALRC report made some useful recommendations about how settler law could deal more fairly with Aboriginal people by taking their traditions and customs into account.Harry Blagg, Professor of Criminology, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.