Clark, Geoff --- "Not Just Payback: Indigenous Customary Law" [2002] ALRCRefJl 2; (2002) 80 Australian Law Reform Commission Reform Journal 5

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Reform Issue 80 Autumn 2002

This article appeared on pages 5 - 10 & 69 - 70 of the original journal.

Not just payback: indigenous customary law

By Geoff Clark*

“When I was very young my father would take me to this place of the banyan tree. We would always stop here as we walked across Gumatj land. The spirit marked by that tree was respected and it was felt truly in our hearts. We often spoke about Yolngu people as that tree. Strong and firm and fixed to the land. He told me Yolngu people were stuck deep into the land.”
– G Yunupingu AM¹

The battle to preserve Aboriginal and Torres Strait Islander culture and identity began with the first days of settlement. Introduced systems of administration, land and water use, and livestock and plant cultivation rapidly overran their indigenous equivalents. Imported social diseases such as influenza, smallpox and alcoholism ripped through the indigenous population with a devastating impact, while the imported social order of colonialism enforced with frontier militarism proved just as virulent in ripping the fabric of indigenous community structures.

Settlement in Australia was prosecuted in a particularly racist manner. In comparable colonies like New Zealand and North America, the sovereignty and social order of indigenous communities was recognised (however imperfectly) by way of treaties. However, settlers in this land proceeded on the racist assumption of terra nullius – arbitrarily designating indigenous communities as occupiers of land, not owners.

In fact, we were neither.

The indigenous relationship with land – mutual dependence – is unknown in the European context. With this lack of understanding, indigenous systems and populations were deemed to have no legal consequence – unless we misbehaved, in which case the rule of law was applied solely as retribution. There was no shortage of misbehaviour.

Within two years of settlement in Sydney Cove, the great resistance leader Pemulwuy led his people into a 12-year campaign rejecting invasion and colonial rule. Other resistance movements developed throughout the country as settlement spread. Pemulwuy’s principal targets were economic and tactical – the buildings, crops and livestock that were consuming lands that otherwise supported hunting and gathering. He demonstrated superior knowledge of, and skill with, the land that his people had tended for generations – yet this was not recognised as evidence of a complex and ancient system of land management.

Thus was set the context and justification for the widespread policies of dispossession, dispersal and denial that followed – both those sanctioned by the authorities and those (murder, rape, kidnap and poisoning) practised by settlers in areas beyond the reach of colonial administration.

Dispossession is the cancer that erodes cultural practice from the inside. Dispersal breaks down family and community cohesion, while denial constrains our attempts to seek recognition and redress.

Within this framework, the scope for practising customary law has withered along with our people’s ability to sustain healthy communities.

“Some observers, many of them Aboriginal, look with distress on the decline in self-discipline and traditional authority in Aboriginal communities. They see the ineffective way in which our Western laws and punishments have sought to deal with social breakdown. In these circumstances they ask the question whether the recreation of respect for Aboriginal customary laws would give fresh stability to Aboriginal society and protection against the erosion of Aboriginal identity.”²

Justice Michael Kirby, the then Chairman of the Australian Law Reform Commission (ALRC), made this radio broadcast three years after the ALRC embarked on an inquiry into the feasibility of applying indigenous customary law ‘in whole or in part’ and with specific reference to the operation of the criminal courts.

The final report, The Recognition of Aboriginal Customary Laws,³ was delivered in 1986 and stands as the most comprehensive study of Aboriginal and Torres Strait Islander customary law to date.

In the years since then, the issue of the recognition of indigenous customary law has advanced usually only in response to emerging principles – such as the Mabo decision,⁴ which prompted the federal government to devise a regime to quarantine native title claims from common law processes. Overall, the federal government has referred the matter of customary law to the States and Territories to resolve in terms of specific legislative issues such as sacred site and heritage protection, and land rights legislation.

Yet indigenous people maintain a strong desire to see the formal recognition of indigenous customary law as a valid and independent source of law alongside general Australian law. This would achieve two things:

• recognition of the place and rights of indigenous people;

• access to culturally relevant systems to restore community harmony and discipline communities, which is unachievable under the introduced system.

Justice Kirby, in his 1980 broadcast, said ‘the law is a force for cohesiveness, order and peace in society’. This is the role that Aboriginal and Torres Strait Islander people want for customary law in our communities.

Not just payback

In this article, it is not my intention to assess the wide range of views on customary law or to repackage ALRC documents. I will instead present an indigenous perspective and, in passing, make summary reference to some of ATSIC’s reports and submissions.

The first thing to be said is that customary law can have wide application in indigenous communities – not only those with a thriving traditional heritage (such as in Central and Northern Australia) but also those whose lands have largely been alienated and who have engaged more closely with non-indigenous communities.

Customary law should not be seen only in terms of the traditional tribal punishments of spearing, banishment and payback. Customary law should be seen principally and more positively as the application of cultural values and principles to indigenous community life. It can provide the framework for systems of authority, discipline, administration and conflict resolution. It should be both the source and the shield of our indigenous identities, while taking account of the historical circumstances of communities.

In Western Victoria, Aboriginal people no longer carry spears but we maintain a very strong sense of our cultural identities nonetheless. Our links to clan, land and water are robust – each of us knows where we belong, who we belong to and what our responsibilities are. We maintain our cultural practices and affiliations even though these mostly are constrained by the invasive force of development, backed by British law. The strength of these links was recognised in the Aboriginal Land (Lake Condah And Framlingham Forest) Act 1987 (Cth) that delivered the old Framlingham mission reserve back into the hands of my community. But there is no question of re-introducing spearing and payback to community life in rural Victoria (if, in fact, these were ever practised). Like every community with a strong sense of heritage – immigrant or otherwise – we are looking at blending cultural values to provide a more workable model.

To borrow Justice Kirby’s words for one last time:

“Just as our legal rules change, so we should expect Aboriginal laws to change and adapt. Whilst rejecting oppressive elements ... we may still find in Aboriginal traditional law answers that will restore acceptable social control to at least some Aboriginal communities.”⁵

For the vast majority of indigenous communities, this remains the key issue – restoring acceptable social control. The extent of community dysfunction is well known but imposed external responses have shown they do not deliver improvements. Our survival as communities and the survival of our indigenous identities relies on us finding the internal responses that are appropriate to our needs.

Law vs Law

“In the early 1960s, when the Gove bauxite mine began we began our fight. Yolngu tribes from North East Arnhem Land took what is known as the Bark Petition to Canberra ... It could be likened to the Magna Carta of Balanda law because it was the first time Yolngu had ever set our law down for others to see ... We had given them the secrets of our law and they still refused to act.”⁶

Acknowledgement of the role of customary law did not occur in Australian courts until 1971. Justice Blackburn of the Northern Territory Supreme Court observed in Milirrpum v Nabalco Pty Ltd and the Commonwealth that indigenous law was ‘a subtle and elaborate system highly adapted to the country in which people lived their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence ... a government of laws not of men.’⁷

The Yolngu peoples took legal action to protect their lands and cultures when the federal parliament dismissed their conciliatory gesture with the Bark Petition.

Despite his acknowledgement, Justice Blackburn found no basis for enforcing customary rights to land against the Crown without support from a legislative or executive act. (It is worth noting that the weight of scholarly analysis since then criticises Justice Blackburn’s judgment as illogical, inconsistent with common law and a misinterpretation of tenurial law.)

In 1975, two pieces of Commonwealth legislation recognised customary law.

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) established a process for granting land to Aboriginal communities that could demonstrate traditional use of the area under claim. ‘Aboriginal tradition’ is defined under section 3(1) as:

“... the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied to particular persons, sites, areas of land, things or relationships.”

The Aboriginal Council and Associations Act 1976 (Cth) established a scheme for incorporating indigenous community associations and councils under their own constitutions and rules. Section 43(4) states:

“The Rules of an association with respect to any matter may be based on Aboriginal custom.”

The next significant event was the ALRC inquiry from 1977.

Setting the agenda on customary law

“The Commonwealth Government should ensure that effective processes are put in place for addressing the recommendations of the Australian Law Reform Commission Report on Customary Law Reform which would include:
a. oversight by a committee comprising the Minister for Aboriginal and Torres Strait Islander Affairs, the Attorney-General and the Chairperson of ATSIC; and
b. extensive consultations with traditional law men and women.”⁸

In 1994, the Labor federal government produced a Report on Commonwealth Implementation of the Recommendations of the Australian Law Reform Commission as its response to Recommendation 219 of the Royal Commission into Aboriginal Deaths in Custody (1987-91).⁹ It also formally rejected the recommendation on overriding federal legislation.

In March 1996, the Attorney-General of the Coalition federal government gave tentative support to formal recognition of customary law in legislation on condition that the States and Territories took responsibility for doing so.

Other developments – such as the Mabo decision, the development and amendment of a native title regime, and issues pursued under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) – have focused attention on customary law matters, but not often in a positive way.

Formal recognition of customary law as a valid source of law alongside general Australian law has yet to be realised.

In Recognition, Rights and Reform, ATSIC argued that customary law is an integral and central part of Aboriginal and Torres Strait Islander culture and identity. ATSIC said that in many parts of Australia, Aboriginal and Torres Strait Islander peoples are bound by customary systems of legal, social and religious rules and obligations which govern relationships between themselves and with their land. We expressed concern at the tendency to try to accommodate the ALRC recommendations under general provisions of law rather than to legislate specifically or to allow recognition to occur through the common law process. The result is ad hoc and uneven outcomes, and the shifting of government responsibility onto the judiciary. Today, some 16 years after the ALRC issued its report (and eight years after we made the same point in Recognition, Rights and Reform) there has been no comprehensive response from government.

The major hurdle seems to be the reluctance by all governments to recognise the unique legal position that indigenous people hold in this country. Ministers speak of respecting the cultures of all minority groups but this is avoiding the issue.

Aboriginal and Torres Strait Islander peoples are not members of an immigrant society that has exercised choice in where and under which legal system it has agreed to live. We have a special status as indigenous peoples – a distinction that has long been recognised in comparable countries such as the United States and Canada.

International trends

Australia continues to ignore or misunderstand developments that see increasing recognition for customary law in international instruments and in the work developed by the United Nations.

For example, Article 8 of the International Labour Organization’s Convention No 169 states that indigenous peoples:

“ ... shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights.”

Article 9(1) provides that, subject to the same limitations:

“... the methods customarily practised by the peoples concerned for dealing with offences committed by their members shall be respected.”

The principal relevant UN forum is the Working Group on Indigenous Populations (WGIP), which meets annually in Geneva to review and discuss indigenous issues. In 1993 the WGIP completed a Draft Declaration on the Rights of Indigenous Peoples, which is currently under consideration by a special working group of the Commission on Human Rights. The Commission hopes to complete its review of the Draft Declaration in time for adoption by the General Assembly in 2004 – the final year of the current International Decade of the World’s Indigenous People.

ATSIC holds consultative status to the UN’s Economic and Social Council, which entitles us to send delegations to a wide range of international and intergovernmental conferences and attend WGIP sessions. We support the Draft Declaration and we will seek to preserve its integrity during current UN review processes.

Six articles of the Draft Declaration deal with indigenous customary law and practices, among which are the following:

Article 26
Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights.
Article 33
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards.

In Australia, government interest in remaining abreast of international trends continues to be negligible, if not reluctant.

Incremental developments occur when the court and law enforcement systems sometimes take customary law into account:

• in New South Wales, the Northern Territory, South Australia and Victoria, adoption legislation recognises traditional indigenous marriages;

• in NSW, traditional indigenous marriages are recognised in legislation as de facto relationships;

• in the Northern Territory, traditional indigenous marriages are recognised for most purposes;

• child and community welfare legislation in a number of jurisdictions requires that every effort is made to place indigenous children for care or adoption with extended family or Aboriginal people who have the correct relationship with the child in accordance with customary law;

• in the area of criminal law, indigenous law, culture and tradition may be relevant to defences of provocation, duress and authorisation; applications for bail; issues of fitness to stand trial and in sentencing indigenous defendants;

• the common law in the Northern Territory has made it clear that judges can take customary law into account in sentencing an Aboriginal person for a criminal offence.

Community justice initiatives

I recently held informal discussions with federal government officials on the prospect of supporting customary law and traditional authority structures to assist and strengthen indigenous communities against the problems of violence they are experiencing.

I was pleased there was interest in the idea and a commitment to a cooperative process of developing national principles for best practice Indigenous Community Justice Mechanisms and community governance structures.

Violence within indigenous communities is linked to the unacceptably high over-representation of indigenous people at all stages in the criminal justice system – from arrest to incarceration. Despite some minor change in the patterns of over-representation since the Royal Commission into Aboriginal Deaths in Custody reported in 1991, the over-representation of indigenous people at all stages in the criminal justice system remains an issue of critical national significance.

The amount of violence, particularly family violence, in our communities is enormous. Our young people face a high risk of being injured or becoming involved in perpetuating the cycle. A wide range of diversionary initiatives and interventions are possible under an Indigenous Community Justice system, including:

• regular meetings between the police and Justice Groups to develop strategies to address youth crime, petrol sniffing and alcohol abuse with minimum police intervention;

• alternatives to court appearances such as a Justice Panel;

• court participation by indigenous elders with input into sentencing procedures;

• early intervention with child and youth offenders;

• sending offenders to out-stations for cultural learning and/or stockwork or punishment;

• various shaming techniques and admonishment in front of peers.

These are measures that begin to return to communities a sense of control, influence and renewed identity.

As a matter of priority, we need to make an investment in the restoration of structures that support cultural authority and anchor our people in the sense of who they are and what they can achieve. We will do most of the work in our own communities. We will take charge and change the ways in which our communities function.

But we need the support of government to ensure commitment and consistency – and this means legislative or constitutional measures to guarantee longevity and independence for the recognition of our customary law.

It is a process that still needs to be researched, debated and developed. It is a process that will complement the existing legal system – not replace it or rival it.

Aboriginal and Torres Strait Islander people are keen to take up our social responsibilities, but the pattern of history to date consists of denial and dismissal. The ALRC and other bodies have provided the research and other nations have provided the example. Governments now have the relatively straightforward task of taking steps towards implementing policies of recognition and inclusion.

*Geoff Clark is the Chairman of the Aboriginal and Torres Strait Islander Commission.

Endnotes

1. G Yunupingu, AM, We know these things to be true, 3rd Lingiari Memorial Lecture, 20 August 1998.

2. M Kirby, Guest of Honour program (January 1980) ABC Sydney.

3. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws ALRC 31 (1986) Australian Government Publishing Service, Canberra.

4. Mabo v Queensland (No 2) (1992) 175 CLR 1.

5. M Kirby, Guest of Honour program (January 1980) ABC Sydney.

6. G Yunupingu, AM, We know these things to be true, 3rd Lingiari Memorial Lecture, 20 August 1998.

7. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

8. Aboriginal and Torres Strait Islander Commission, Recognition, Rights and Reform – Report to Government on Native Title Social Justice Measures (1995) ATSIC, Canberra, Recommendation 84.

9. Office of Indigenous Affairs, Department of Prime Minister and Cabinet, Aboriginal customary laws: report on Commonwealth implementation (1994) AGPS, Canberra.