Aboriginal Customary Law

Aboriginal law had lasted for hundreds of years before white settlement of Australia in 1788. The laws were based from the Dreamtime and were formed by ancestors, spirits and Aboriginal beliefs. These laws were passed down by a word-of-mouth tradition and as there were many different tribes consisting of many clans spread out over a large area, separate laws were adapted to specific tribes and areas. Aboriginal customary laws were developed and based on the aboriginal relationship to the land as well as the view that property (land) and individual belongings were owned by the community as a whole. All items were collectively used and land was not owned by a particular tribe.

Aboriginal customary law that governed aboriginal life was based upon unwritten rules based on lessons learnt from the dreamtime, kinship ties and relationships, ritual traditions, sacred and secular laws and clan consensus. The law from an aboriginal perspective was no different from daily lifestyle choices because the laws covered rules, morals religion and daily activities.

Sacred Laws taught acceptable behaviour, taught customary laws, governed the use of land and performance of rituals and was entrusted to the elders of each tribe. Secular Laws emphasised responsibilities and rights of individuals and their extended families, the importance of the land for both clan and individual and most importantly responsibility over children throughout their childhood life.

Aboriginal customary laws, before white settlement in 1788, were considered primitive by the British. When the British arrived in Australia they declared the land Terra Nullius. The British did not recognise the Aboriginal ownership of the land, more importantly they did not recognise the Aboriginal law and order system as civilised. This resulted in the British conveniently declaring sovereignty over Australia h declaring Australia commonwealth property and land. The Aboriginal concept of being traditional guardians of the land maintaining and preserving it "ceased to exist in the eyes of the Ð''law'" (Heinemann, 2000:224)

Traditional Aboriginal customary law was effectively banned and Aboriginal people were forced to conform to the British legal system as well as being restricted in their activaties such as holding meetings, carrying hunting weapons etc. it was extremely restrictive as Aboriginal peoples not following these rules were considered dangerous and either gaoled or shot.

Traditional Aboriginal laws and customs were not acknowledged to have existed until the the 1971 Miliripum v Nabalco Pty Ltd (the Gove Land Rights case). Even though the notion of terra nullius was upheld and native title rights were at this point denied, Judge Blackburn did acknowledge "the claimants' [the aboriginal people] ritual and economic use of the land and that they had an established system of law."

Aborigines had established "Ð'... a subtle and elaborate system of social rules and customs which was highly adapted to a country in which the people lived and which provided a stable order of society remarkably free of the vagaries of personal whim or influence.'

Blackburn, J decision in Miliripum v Nabalco (The Gove Land Rights Case) (1970) 17 FLR 141

Judge Blackburn's decisions on the law of Native Title were held until the High Court overturned the decisions in the Mabo v Queensland (No 2) case.

On the issue of terra nullius the High Court said:

"The Terra nullius doctrine is not part of Australian law. The historical facts do not fit the Ð''absence of law' or Ð''barbarian' theory which underpinned the reception of English law into Australia. Thus, the notion that Australia was terra nullius was dismissed by the High Court in Mabo."

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

In the Mabo case the court acknowledged that the Meriam tribe living at Murray Islands owned and had lived on the land. It allowed them to use and enjoy the land and to occupy it. "In terms of civil law, the High Court appears to acknowledge that indigenous customary law can and does co-exist with Australian common law." (Heinemann, 2000:234) This decision was a firm acknowledgement of the existence of Aboriginal customary law.

The High Court concluded that some Aboriginal land law survived the colonisation process. This was a conclusion confirmed in WA v Commonwealth, Wororra Peoples v WA and Teddy Biljabu and others v WA, High Court, March 16 1995.

The question is whether other Aboriginal traditional customary laws such laws governing family relationships, community justice mechanisms, criminal law etc survived colonisation. If native title survived, why didn't other property law? Why didn't any traditional laws retain their credence? This issue was not addressed in any of the judgments in Mabo.

At a 1994 conference in Darwin the Social Justice Commissioner said this about the issue:

"Recognition must be given ... to the existence (and survival) of customary law. As indigenous cultures are organic (rather than static), customary law may exist (albeit in an evolved/evolving format) in contemporary communities, as well as in their more traditionally orientated counterparts. As Australian society examines socially just ways of dealing with its indigenous peoples, and as Aboriginal and Torres Strait Islander peoples continue to demand the right of more culturally appropriate responses, the importance of customary law cannot be underestimated" (Social Justice Commissioner, 1995: |P 31).

The Federal Minister, at a Justice Forum convened 23 August 1994 (Office of Indigenous Affairs, 1994:) stated his belief that:

"Aboriginal and Torres Strait Islander customary law shall be recognised and applied to the extent that it continues to be traditionally practised by indigenous people provided that such application by the courts shall be reasonable and in accordance with Australia's international obligations."

There are a variety of other reasons why customary law should be recognised. Aboriginal customary law is a central part of many Aboriginal people's way of life. There is less possibility of an Aboriginal seeing a decision as unjust if it is part of customary law. The opposite is true of the European legal system. This is because the European system is