tag:theconversation.com,2011:/ca-fr/topics/customary-law-report-28252/articlesCustomary law report – La Conversation2016-06-09T20:09:30Ztag: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>
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<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>
<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/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.