Tuesday, 16th of January, 2018

Aboriginal Law

What is Aboriginal Law?

There is a distinction between Aboriginal law and the law which governs Aborigines in Australia today. . Aboriginal law is law that existed before the coming of the common law system that we continue to follow today.

For a long time, the idea of Aboriginal law existing in Australia, particularly in a place like Tasmania where Aboriginal society had been almost destroyed, was met with resistance by the legislature and courts of Australia. But Aboriginal law is a fact. It continues to exist in Aboriginal communities, including the Tasmanian Aboriginal community, to the extent that its members continue to observe customs and practices.

Australian law recognises certain aspects of Aboriginal law and custom within its own system. This includes such things as traditional rights to fishing, or land rights, community involvement in rehabilitating or punishing criminal offenders. Some of this law stems from developments in international law, and is generally reflective of greater recognition of the independent cultural identities of indigenous people across the world. This chapter sets out the important parts of Aboriginal law both as it affects Aborigines and the general Australian community.

What is Aboriginal law?

Aboriginal law is distinct from Australian law in that it covers all aspects of Aboriginal life – it is culture, land and law. The oral traditions of Aboriginal peoples inform Aboriginal law, the landscape is part of the oral tradition, and so the land is part of the law. The stories and the landmarks that indicate the stories create the law. In some ways you can draw parallels between Aboriginal law and Sharia law, derived from the Koran, in that it covers all aspects of life – family, community, crime. In the common law tradition, of which Australia is a part, many things we would consider to be social decisions, and not legal decisions, are considered to be part of Aboriginal law.

Because Aboriginal law is so different from common law, it can be difficult to understand. The Australian legal system does not guide us on how to behave in all aspects of our lives, but Aboriginal law does. Australian law doesn’t tell us who can and can’t eat a certain animal, or how infidelity in marriage should be punished. These are considered matters of personal choice. In Aboriginal law this is not the case.

However, time has radically altered nearly all Aboriginal communities, and inevitably the stronger of the two systems of law prevailed – this is the Australian legal system. This system recognises Aboriginal law, but Aboriginal law is not independent of this legal system.

What is an Aborigine?

The Aboriginal Lands Act 1995 (Tas) defines an Aboriginal person as someone who can establish they have Aboriginal ancestry, self-identification as an Aboriginal person and communal recognition by members of the Aboriginal community (s3A). This is the same definition as accepted by the High Court of Australia in the 1983 ‘Tasmanian Dam Case’.

In 1996 two members of the Aboriginal Tasmanian community challenged the Aboriginal identity of 11 of the 34 candidates for the election of the Tasmanian Regional Aboriginal Council. The case was dealt with by the Federal Court (Shaw & James v Wolf & Ors [1998] FCA 389). The court held that Aboriginal descent was essential but ‘self-identification’ and ‘communal recognition' could be relevant factors in any particular case. It also held that in this particular case it was up to the challengers to prove that the candidates were not Aborigines. The challenge was largely unsuccessful, and the decision has little practical effect in most areas particularly as the onus of proof and standard of proof made it practically impossible for the applicants to establish their case.

Generally the onus is on the person seeking to establish an entitlement, as an Aborigine, to funds, services and other things intended for Aborigines, to prove that they are an Aborigine. What proof is required varies with circumstances.

Right to Land

Land law is the most important part of Aboriginal law. It defines who you are and where you belong. Even before the famous Mabo case (Mabo & Anor v Queensland (1992) 175 CLR 1), Australian society had begun to recognise the continuing importance of land to Aboriginal communities by passing ‘land rights’ legislation at state and territory levels. This development arose from the Woodward Royal Commission into Aboriginal Land Rights in the Northern Territory which was established following the defeat of Aboriginal claims to possessory or native title in the Federal Court’s  Milirrpum v Nabalco Case in 1971.

Mabo

In the Mabo case it was finally recognised that Australians had not settled in an empty land (terra nullius) but that this land was inhabited by people with their own laws, including laws which defined their rights to the land. The High Court found that much of this law had been 'extinguished' by the massacre of whole tribes and the dispossession of Aborigines from their lands under Australian law, but where Aborigines had survived and maintained a link with their lands, their rights to their lands had survived and were now to be recognised as part of Australian law.

Following the Mabo case, the Commonwealth government passed the Native Title Act 1993 (Cth)  Developments which led up to this legislation have been document by Aboriginal activity Gary Foley on his Koori History Website ‘The Road to Native Title: The Aboriginal Rights Movement and the Australian Labor Party 1973-1996'. One of the most important things the Act did was to legalise all past actions in taking land from Aborigines, subject to a right of compensation for land taken contrary to the Racial Discrimination Act 1975 (Cth) since 1975. However, it also enables Aborigines to lay claim to land that is left by showing that they have maintained their traditional links with their land. The procedures are very long and involved. Any claim must first pass a stiff ‘registration test' before the application can begin. Passing this test gives the Aboriginal claimants the right to negotiate about such things as mining on their land.

Both the registration test and the claims process have been made even more difficult with amendments to the Act which followed the of Wik case (Wik Peoples v Queensland (1996) 187 CLR 1). This case decided that native title could co-exist with interests in land created by pastoral leases which cover a large part of Australia. Because of alleged discrimination against Aboriginal property rights, the Commonwealth government was asked to ‘explain’ these amendments to the Native Title Act by the UN Committee on the Elimination of Racial Discrimination.

Very few contested native title applications have been successful. No native title application in Tasmania has ever passed the registration test. Claims are increasingly being settled by agreements between the Aboriginal claimants and people affected by the claim.

Tasmanian Aboriginal land

The Aboriginal community in Tasmania was granted a number of small parcels of land under the Aboriginal Lands Act 1995 (Tas) (s27). ‘Aboriginal land’ under that Act consists of land of important historical and cultural significance to Aborigines such as Oyster Cove and Risdon Cove near Hobart; Wybalenna on Flinders Island where many tribal people perished in the early 19th century; various mutton-birding islands in the Bass Strait and some inland cave sites. A list of the sites can be viewed in Schedule 3 of the Act. This land is held in trust for the Aboriginal community by a statutory body, the Aboriginal Land Council of Tasmania (ALCT) (ss5 and 6), which is elected by members of the community (Part 2, Div 2). The land cannot mortgaged by ALCT (ss27 and 30), and local Aboriginal groups can be involved in its management (s31). There are rights of pedestrian access to the land for non-Aboriginal people, and the state government has reserved rights to build roads, and erect fences on the land (s27).

Other Rights and Interests

Hunting and Fishing

Taking fish from the sea and birds and animals from the land continues to be an important part of modern day Aboriginal law and culture in Tasmania. Until recently such activities were regarded as illegal unless allowed by legislation applicable to the general community and commercial interests. Traditional Aboriginal hunting and fishing practices are protected under the Native Title Act, but an attempt to establish that such rights continued to exist in southern Tasmania in relation to taking abalone was unsuccessful (Dillon v Davies (1998) TASSC 60).

However, Aboriginal cultural, and native title rights to take fish are recognised under the Living Marine Resources Management Act 1995 (Tas) (s10(2)). Aborigines exercising their cultural rights to fish do not need a licence (s60(2)(c)). The onus is on a person to prove they are an Aborigine and are engaged in cultural fishing (s215(b)). The government's view is that bag and size limits and other regulations continue to apply, though this is not a view shared by the Aboriginal community.

Cultural Rights

The main legislation for Aboriginal heritage protection is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) concerning matters of national environmental significance. In Tasmania, the ancient heritage at Kutalayna (Jordan River levee) attracted Commonwealth intervention under the EPBC Act when it was accepted for national heritage listing in December 2011.

Protection is also available under the Commonwealth’s Protection of Movable Cultural Heritage Act 1986 (Cth) to stop heritage objects from being exported illegally. However, there is no legislation to prevent the sale of significant items such as portraits and paintings at auction or by private sale.

The federal Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) enables the Commonwealth Minister for  Sustainability, Environment, Water, Population and Communities to make declarations preventing ‘desecration or injury' to sites and objects of cultural significance to Aboriginal people (ss10 and 12). In practice, the power to make declarations under the Act is a ‘back-up’ where the state is unable or unwilling to act, and Commonwealth intervention to protect Aboriginal heritage is uncommon.

The courts have also been prepared to protect Aboriginal culture from exploitation through creative use of copyright law and the common law relating to breach of confidence. Breach of confidence was used to stop an anthropologist publishing sacred ritual knowledge he had obtained from Pitjantjatjara tribal elders in Central Australia (Foster v Mountford (1976) FLR 233). Copyright law was used to stop the Reserve Bank using sacred pole designs on the $1 note, and to stop an importer selling carpets reproducing paintings containing images of sacred significance.

The outdated Aboriginal Relics Act 1975 (Tas) has been under review for more than a decade and a draft Aboriginal Heritage Protection Bill 2012 (Tas) was open for public consultation until 14 December 2012. The Bill was passed in the House of Assembly in November 2013, and is now before the Legislative Council. DPIPWE provides comprehensive information on the process. 

It has been put forward that the Bill fails to reflect the principles included in recommendations of a Working Group chaired by former Liberal Premier, Ray Groom. In particular, it fails to recognise Aboriginal community ownership of Aboriginal heritage, removes blanket protection for Aboriginal artefacts located in the soil, and establishes less protections for Aboriginal heritage than exists for non-Aboriginal heritage under the Historic Cultural Heritage Act 1995 (Tas). For a detailed analysis, see the Tasmanian Aboriginal Centre website.

Genetic Rights

Knowledge of the genetic structure of human beings, and flora and fauna are considered valuable resources. Commercial interests are seeking to patent knowledge of genetic heritage as ‘intellectual property’ for their own exclusive use for medical, and plant and animal breeding purposes.
Indigenous peoples are understandably concerned that this new extension of the frontier of human knowledge will simply become a means of exploiting their genes and the biodiversity of the living natural resources of their lands. Australia ratified the Convention on Biodiversity in 1993. Article 10 of this convention requires Australia 'to protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation and sustainable use requirements'.

Human Remains

The battle to secure respect for the Aboriginal dead has been a crucial cultural issue. Tasmanian Aborigines have been prepared to go to museums in all corners of Europe and North America, as well as Australia and New Zealand, to bring back the remains of their ancestors taken for ‘scientific’ or trophy purposes in the 19th and early 20th century.

The Coroners Act 1995 (Tas) recognises the right of the Aboriginal community to deal with the remains of both ancient and contemporary Aboriginal people by requiring a coroner who suspects that human remains are Aboriginal to place the matter in the hands of an Aboriginal organisation (s23). Currently the relevant organisation is the Tasmanian Aboriginal Land and Sea Council Inc (this organisation is not the same as the elected but statutory Aboriginal Land Council of Tasmania (ALTC)).

Families

The Commonwealth's 1996 Inquiry Into the Separation of Aboriginal and Torres Strait Islander Children From Their Families (‘the Stolen Generations’ Inquiry) documented the damage done to Aboriginal people, their families and community by past ‘welfare’ practices directed towards the assimilation of Aborigines into the mainstream population. This occurred across Australia. In August 1997 the Tasmanian state government was one of the first to make an official apology to the Aboriginal community for this. The Stolen Generations of Aboriginal Children Act 2006 (Tas) remains the only legislation in Australia to make financial redress to the survivors of the government removal of Aboriginal children policy and practice. Then Premier Paul Lennon made an empassioned speech to Parliament and the Bill received bipartisan support.

The Children, Young Persons and Their Families Act 1997 (Tas) says that an Aboriginal organisation must be consulted before an order is made as to where an Aboriginal child is to reside following family breakdown (s9(1)). Court decisions must take into account what the Aboriginal organisation says (s9(2)). There are no such provisions under the Adoption Act 1988 (Tas) but the community welfare authorities do observe a protocol to the same effect. Under this protocol Aboriginal organisations will also be consulted where Aborigines seek to contact their natural parents or vice versa.

Currently, the Family Law Act 1975 (Cth) states that in making parenting orders, the court must take into account the child-rearing practices of a child’s Torres Strait Islander or Aboriginal culture (s61F).

Discrimination

Discrimination on the grounds of race, colour and national or ethnic origin in employment, joining trade unions, housing, access to places and goods and services and in advertising, is illegal under the Racial Discrimination Act 1975 (Cth) (s9). A number of provisions of the Racial Discrimination Act are of particular importance to Aborigines. The Act specifically protects ‘special measures’ by governments designed to enable victims of discrimination to overcome its effects (s8). Laws which are discriminatory, either on their face or in effect, are also unlawful under the equality before the law provisions of the Act (s10).

The meaning of ‘special measures’ has been much debated in the context of the Howard Government’s Northern Territory National Emergency Response Act 2007 (Cth) which specifically exempted the operation of the Racial Discrimination Act 1975 in order to implement overtly racist control measures under the guise of protecting children from sexual abuse. There has been some discussion on the possible implications for Tasmania of the activities of the federal government in the Northern Territory.

Indigenous self-determination, self-government and sovereignty

Whilst much of the focus in the recent decade has been on ‘Sorry’, and a wide cultural and political recognition of the wrongs of the past, there have been more other political movements to achieve representation for Aborigines and Torres Strait Islanders. Indigenous Australians never chose the system of law that governs them, and due to their position as a minority of the population they do not generally have the ability to significantly influence the political process with their votes. Lobbying is one means of doing so, hence the Aboriginal Tent Embassy, or the widespread presence of ‘Invasion Day’ renaming on Australia Day.

Many Aborigines seek greater power to govern themselves. Sometimes this is in the form of greater recognition of Aboriginal law that pre-dated the arrival of European law. This was explored comprehensively by the Australian Law Reform Commission in its Recognition of Aboriginal Customary Laws Report published in 1986, but its findings have been ignored by governments.

Other movements are more radical: a right to secede to form a sovereign nation of their own, others to become a nation (or nations) 'within a nation’ as is the status legally of the Indian nations in the United States of America, or special representation in Australian representative institutions such as federal and state parliaments by means of reserved seats as the Maoris have in New Zealand. These differing bids to retain a separate political identity progress slowly. Moreover, sometimes social and political struggles in Aboriginal communities have come to take precedence over struggles for political representation as a unified voice.

The absence of the recognition of Aborigines and Torres Strait Islanders in the Australian Consitution led some to argue that a new preamble or new provisions in the Consitution was a necessary step towards rectifying the wrongs of the past. Then Prime Minister Kevin Rudd made his National Apology to Australia’s Indigenous Peoples in the Federal Parliament in 2008 but did not establish mechanisms for a financial or political settlement. In December 2010 Prime Minister Julia Gillard appointed an ‘Expert Panel on Constitutional Recognition of Indigenous Australians’ which consulted nationwide and made recommendations for constitutional change. The proposed referendum was later abandoned by the Prime Minister.

Developments in international recognition of indigenous peoples’ rights

One important source of pressure for constitutional change to accommodate the aspirations of indigenous people for a greater degree of political and cultural independence is likely to come from developments in international law, particularly the law contained in United Nations instruments. The UN Convention for the Elimination of All Forms of Racial Discrimination has become part of Australian law by its adoption in the federal Racial Discrimination Act 1975 (Cth)  and while the passage of the Act promised to become an important guarantee of Aboriginal rights to their land and property, the political and social climate has proved hostile to realising this promise. Article 27 of the UN International Covenant on Civil and Political Rights protects the cultural rights of different ethnic groups within nation states. Australia has ratified this covenant, but it has not been made part of Australian law. However, the fact of ratification has enabled Aborigines to argue for legislative protection of cultural rights.

The international legal order has been built upon the idea that the nation state has complete power over its citizens. This idea is increasingly under challenge where the state violates the human rights of its citizens as recognised under international law. One of the strongest challenges to that idea has come from indigenous peoples around the world. From 1983, under UN sponsorship, their representatives met annually with the representatives of the nation states to negotiate the terms of the Draft Declaration of the Rights of Indigenous Peoples. The Declaration was adopted by the United Nations General Assembly in 2007 with only Australia, USA, Canada and New Zealand dissenting. Australia finally endorsed the Declaration in 2009 but has not enacted legislation to ensure the implementation of the Declaration in Australia. The Declaration may eventually prove to be the catalyst which enables Aborigines to attain nationhood under international law.

Aborigines and the Criminal Law

Aboriginal people have a disproportionate representation in a low socio-economic demographic. They are more likely to be arrested, charged with offences and imprisoned than any other group. Charges often involve drunkenness, bad language and defiance of authority as an element, and because of a legacy of hostility between police and Aborigines, arrests may lead to multiple charges (see Police Offences Act 1935 (Tas) (ss44A12 and 34B)).

In 1989 the Royal Commission into Aboriginal Deaths in Custody found that the much greater frequency of Aboriginal deaths in custody was a direct result of huge over-representation of Aborigines in the prison system, and made hundreds of recommendations to governments designed to overcome the high imprisonment rates of Aborigines. However, implementation of these recommendations has been slow, and high death rates continue as high rates of imprisonment remain steady and in some cases increase.

Some of the most over-used provisions of the Police Offenses Act, such as being drunk and incapable of taking care of oneself, were removed as a result of the Royal Commission’s work and Police Standing Orders were changed to require police to notify the Aboriginal Legal Service when an Aboriginal person is detained. Police in Tasmania at an official, and in some cases at a street, level have shown themselves more willing to enforce the law in a way that is more sensitive to the special vulnerability of Aboriginal community to law enforcement processes.

The Youth Justice Act 1997 (Tas) enables Aboriginal community representatives to participate directly in procedures designed to divert first and minor offenders away from the court system through police ‘cautions' and 'community conferencing’ (ss11(1)14(1)(c)(ii), and 38(2)(e)). An Aboriginal representative may be present in the closed court with the consent of the young Aboriginal person charged (s30(1)(i)). If placed in detention, reasonable efforts must be made to meet the needs of young Aboriginal detainees as members of the Aboriginal community, in addition to their cultural needs. (s129(c)).

Legal Assistance

There is no legal impediment to Tasmanian Aborigines accessing the same legal assistance as other Tasmanian residents but the practical exclusion of many Aborigines from the criminal justice system resulted in the establishment of Aboriginal Legal Services throughout Australia in the early 1970s. There is an Aboriginal Legal Service in Tasmania operated by the Tasmanian Aboriginal Centreand providing legal aid in a number of areas of law with emphasis on protecting the civil andpolitical rights of the Aboriginal community. The TAC has offices in Hobart, Launceston and Burnie.

A person seeking aid must establish that he or she is eligible for Aboriginal services and that the matter for which aid is sought is within the terms of the Commonwealth’s ‘Policy Directions’. Stamp duty assistance for first home buyers is sometimes available through the Aboriginal Legal Service. Legal assistance is provided through the Aboriginal Legal Service’s retained law firm, Beeton and Mansell. Only if the Aboriginal Legal Service cannot act will the Service meet the costs of providing a private lawyer. Aboriginal people may also seek legal assistance from other bodies offering this. The contact details for the Hobart, Burnie and Launceston offices are available through the Tasmanian Aboriginal Centre website.

Organisations

Aboriginal organisations fulfil many functions in the Aboriginal community. They are a means of political advancement for the community and the maintenance of Aboriginal cultural identity in mainstream Australian society. Some are ‘grassroots’ organisations thrown up by the struggles of the Aboriginal community in these spheres. Others are the products of government attempts to ensure representation of Aboriginal interests in government decision-making processes or to regulate particular aspects of Aboriginal community life.

The State government has an Office of Aboriginal Affairs in the Department of Premier and Cabinet. Its function is to advise the government on State policies affecting the Aboriginal community. There are also a large number of community organisations set up to provide services and promote cultural and other activities in the Aboriginal community.

The largest and oldest Aboriginal organisation is the Tasmanian Aboriginal Centre. It has offices in Hobart, Launceston and Burnie. As well as providing political representation and cultural promotion for the Aboriginal community, it offers a wide range of services including legal, health, substance abuse, family support, land management, child care and Aboriginal language and culture programs. The Tasmanian Aboriginal Land and Sea Council  another organisation, is concerned with the protection of the cultural heritage of the Aboriginal community.

There is also the Aboriginal Provisional Government - a countrywide organisation intended to promote Aboriginal sovereignty and self-government.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.