Indigenous Australian customary law

Indigenous Australian customary law refers to the legal systems and practices uniquely belonging to Indigenous Australians. Indigenous customary law developed over time from accepted moral norms within Indigenous societies. They regulate human behaviour, mandate specific sanctions for non-compliance, and connect people with the land and with each other, through a system of relationships.[1]

Indigenous customary law is not uniform across Australia, and systems differ greatly between language groups, clans, and regions.[2]

Within some Indigenous Australian communities, the words "law" and "lore" are words used to differentiate between the Indigenous and post-colonial legal systems. The word "law" is taken to refer to the legal system introduced by the British, whereas the word "lore" is used to refer to the Indigenous customary system. Learned from childhood, lore dictates the rules on how to interact with the land, kinship, and community.[3]

Indigenous customary lore is intertwined with cultural customs, practices, and stories from the Dreamtime (in the case of Aboriginal Australians). Customs are passed on through the generations by means of cultural works such as songlines, stories and dance. Those cultural works are passed on by oral tradition. A report by the Australian Government in 1986 did not find any codified versions of indigenous customary lore, but acknowledged that the existing knowledge of Indigenous Australian traditions may be sufficient to be considered as such.[2]

Indigenous Australian customary lore was asserted to be a nullity by English colonisers, via the legal fiction of Australia as terra nullius at the time of settlement. For that reason, lore was explicitly ignored by British and subsequent Australian courts.

In 1992, post-colonial law recognized Indigenous lore as giving rise to a valid legal claim in the Mabo decision, in which the legal fiction of terra nullius was discarded. While the court found that the crown held radical title over all land in Australia (including land subject to indigenous legal claims), the High Court held that it would recognise customary legal rights to land; if and only if those legal rights had been maintained continuously since settlement, and not displaced by an inconsistent grant in title to another person (such as a grant in freehold). Indigenous customary claims to land are regulated by the Native Title Act as of 1993.

Customary lore has not otherwise been relevant to the development of Australian Common Law by courts.

Legislative bodies since the late-twentieth century have investigated the concept of incorporating indigenous laws more formally into post-colonial legal systems. Reports by the Australian Law Reform Commission[2] and the Law Reform Commission of Western Australia[1] have discussed the desirability of recognising customary law in matters involving Aboriginal Australians. In the Northern Territory, some statutes and courts make explicit reference to customary lore where useful in identifying relationships and social expectations.[4] These changes have sometimes been controversial,[5][6] especially in cases where customary lore is imprecise or infringes upon human rights.[7]

Regional examples

Arnhem Land
Further information: Australian Aboriginal culture § Arnhem Land

Madayin is the customary lore of the Yolngu people, which embodies the rights and responsibilities of the owners of the law, or citizens (rom watangu walal, or simply rom). As well as the objects that symbolise the lore, oral rules, names and song cycles, and the sacred places that are used to maintain, develop and provide education in the law.[8] Rom and its accompanying ceremonies are concepts and practices shared by the neighbouring Anbarra people, also in Arnhem Land.[9][10]

See also

References
  1. Law Reform Commission of Western Australia (February 2006). Aboriginal Customary Laws (Project 94) - Discussion Paper Overview. Quality Press. p. 7. ISBN 1-74035-056-1.
  2. Australian Law Reform Commission (12 June 1986). "24. The Proof of Aboriginal Customary Laws". Recognition of Aboriginal Customary Laws (ALRC Report 31). Retrieved 30 May 2011.
  3. "The Law and the Lore". Working with Indigenous Australians. 19 February 2017. Retrieved 29 January 2020.
  4. Community Welfare Act 1983 (NT) s 69; Sentencing Amendment (Aboriginal Customary Law) Act 2004 (NT) s 4.
  5. Walker v New South Wales [1994] HCA 64, (1994) 182 CLR 45 (16 December 1994), High Court (Australia).
  6. Coe v Commonwealth [1993] HCA 42, High Court (Australia).
  7. "High Court rejects customary law defence in sexual abuse case". The World Today (ABC Radio). 19 May 2006. Retrieved 30 May 2010.
  8. "About Yolngu". Nhulunbuy Corporation. Retrieved 29 January 2020.
  9. Long, Andrew Stawowczyk (1995), "1 transparency : col. ; 5.5 x 5.5 cm.", [Portrait of unidentified Anbarra people performing Rom ceremony...], Collection of photographs taken at opening of 'It's about friendship' - Rom, a ceremony from Arnhem Land exhibition at the National Library of Australia, Canberra, 5 January 1995., nla.obj-147351861, retrieved 29 January 2020 – via Trove
  10. "ROM: An Aboriginal ritual of democracy". Australian Institute of Aboriginal and Torres Strait Islander Studies. Blurb of 1986 book by Stephen Wild. 20 January 2015. Retrieved 29 January 2020. The first ROM ceremony, a 'ritual of diplomacy', performed outside Arnhem Land was held when the Anbarra people..presented a Rom to AIATSIS in 1982.CS1 maint: others (link)

Further reading


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