Integral to the lives of Indigenous minorities of Australia are traditions which formulate a system of unwritten rules, standards and connections to land known as customary law (The University of Melbourne, 2020). In post-colonial systems of law, the integration and recognition of customary law can be assessed to identify the extent and effectiveness of national pluralism.
This report will outline and evaluate Australia’s incorporation of Indigenous customary law within the current post-colonial legal system. Specific regard will be given to the historical background of colonisation which imposed western-law at the subsequent rejection of Indigenous law and recognition (Australian Human Rights Commision, 2007). Reminiscent of this forced settlement is Australia’s adoption of colonialist systems of law, the implications of which further weaken the appropriate delivery of justice for Indigenous Australians (ibid. , 2018).
Overview of customary law and Indigenous recognition:
Britain’s colonisation of Australia in 1788, marked the dispossession of Indigenous rights to land as well as recognition of their sovereign title as ‘First Nation’ people (Australian’s Together , n.d.)
The execution of Britain’s forced-occupation in Australia was contingent on the doctrine of Terra Nullius (Nursoo, 2018). The term meaning “no man’s land” formed the basis in which Britain forcibly occupied Indigenous land and violated customary law by imposing a foreign western law system (Nursoo, 2018). Tied to the concept of Terra Nullius was Britain’s assumption of sovereignty over Australia, further strengthened by the presumption that Indigenous Australians lacked any official system of law or authority (Australian Human Rights Commision, 2007). The elements of this doctrine hence formed the basis in which colonisation was justified and resulted in the: systematic marginalisation of Indigenous communities, the loss of Indigenous land rights and a denial of the presence of Indigenous customary law.
The doctrine of Terra Nullius has proven to be especially controversial when considering the method in which Australian land was ‘colonised’, or more accurately “conquered” (Australian Law Reform Commission , 2015). The method of occupation raised questions about the existence of Indigenous sovereignty, customary law and their residual right to land that survived the process of colonisation (Australian Law Reform Commission , 2015). These subjects will be considered further when discussing the historical progressions impacting law-making in relation to Indigenous Australians (1967 referendum) and the allocation of land rights, (‘Native Title’).
The 1967 referendum was a landmark achievement for Indigenous Australian rights. Specifically, the referendum set out to amend Section 51 (xxvi) and section 127 of the Commonwealth Constitution (Australian’s Together , n.d.). The prior provisions were as follows:
- S 51 (xxvi): “The Parliament shall…have power to make laws for the peace, order, and good government of the Commonwealth with respect to: …The people of any race, other than the aboriginal people in any State, for whom it is necessary to make special laws”
- S127: In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives should not be counted.
To summarise, these relative sections prohibited the Commonwealth to create federal laws in relation to Indigenous Australians, hence law-making powers fell to the discretion of each state (S51). This resulted in a lack of uniform legislation for Indigenous Australians, and also excluded the Indigenous from national population counts (S127) (Australian’s Together , n.d.).
Amendments made to the constitution featured the retraction of the following words from S51 (xxvi):
…“other than the aboriginal people in any State”.
Additionally, s127 was completely removed from the commonwealth constitution (National Library of Australia, 2019). The result of the 1967 referendum granted the Federal parliament power to legislate for Indigenous people, so that their conditions could be uniformly improved and appropriately managed nation-wide (National Library of Australia, 2019).
The results of the referendum incited positive social and legal changes for Indigenous Australians (National Library of Australia, 2019). Specifically, the referendum stimulated the creation of the Land Rights Act 1976 (Northern Territory). This was the first government attempt at recognising the inalienability of Indigenous systems of land ownership rooted in their customs and connection to land (Central Land Council , 2017). The act offered protections for Aboriginal land by prohibiting activities which damage or violate sacred land, and forming the concept of ‘freehold’ title of land, namely that:
‘Indigenous claimed land belongs entirely to their community. It cannot be bought, acquired or mortgaged’ (Central Land Council , 2017).
Despite the promoted benefits of the referendum, the lack of substantial improvement-maintained thrusts towards legal reform and recognition for Indigenous land and customs (National Museum Australia, n.d.). Pivotal to these movements were decisions from the Mabo Case which, through an acknowledgement of Native Title, over-turned the colonialist doctrine of Terra Nullius.
Decisions in The Mabo case were momentous to the recognition of land rights for the Mariam People, highlighting their traditional ownership of the Murray Islands (Torres Strait). Decisions further applied the concept of Native Title to all Indigenous Australians, overturning the colonialist doctrine of Terra Nullius. The concept of ‘Native Title’ outlines a system of recognition in Australian law of the rights and interests of Indigenous people in land and waters, according to their traditional laws and customs (National Native Title Tribunal , 2019). The Mabo Case was comprised of two cases, and disputed the validity of the Australian legal system from two perspectives (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2019), specifically:
- The assumption that Indigenous people had no concept of land ownership before the arrival of British colonisers in 1788 (Terra Nullius), due to possessing no ‘official’ framework of law.
- That sovereignty delivered complete ownership of all land in the new Colony to the Crown, abolishing any existing rights that may have existed previously.
The legal proceedings for The Mabo case began on 20 May 1982 when Mabo brought action against the State of Queensland and the Commonwealth of Australia arguing the existence of ‘Native Title’ to the Murray Islands (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2019).
Attempting to negate the Meriam Peoples case, the Queensland government passed the Queensland Coast Islands Declaratory Act 1985. This act intended to retrospectively extinguish claimed land rights of the Meriam people to the Murray Islands, explicitly stating that:
- Section 3(a) “… upon the islands being annexed to and becoming part of Queensland… the islands are vested with the Crown… freeing Queensland from all other rights, interests and claims of any kind whatsoever” (Parliament of Queensland, 1985).
- Section5(b) …” No compensation is payable to any person… in respect of any right, interest or claim alleged to have existed prior to the annexation of the islands to Queensland” (Parliament of Queensland, 1985).
Considering the implications of the Queensland Coast Islands Declaratory Act 1985, Mabo brought his second case to the High Court, challenging the constitutional validity of the act. The High Court rendered the Queensland Coast Islands Declaratory Act 1985 as invalid as it violated the principles outlined in the Racial Discrimination Act 1975 (High Court of Australia, 1988). This case became known as Mabo v. Queensland (1988) (No. 1), and the decision enabled the continuance of Mabo’s original case of recognising Meriam peoples Native Title to the Murray Islands (National Museum Australia, n.d.).
3rd June 1992 marked the High Court’s landmark decision which recognised the existence of Native Title in the Meriam peoples claim to the Murray Islands. Known as Mabo v. Queensland (No. 2), this case presented by Mabo and the people of the Murray Islands successfully upheld the existence of customs and laws fundamental to Indigenous systems of land ownership (Australian Institute of Aboriginal and Torres Strait Islander Studies, 2019). Specifically, by validating their traditional rights and obligations in relation to land, the decision identified the residual rights of Indigenous people that survived colonialization. This was especially significant in ruling that the continent of Australia was not terra nullius or ‘belonging to no-one’ at the time of settlement, and that in fact, Indigenous peoples have enjoyed rights to their land according to their own set of laws and customs (Cawthorn, 2019).
In overturning the doctrine of Terra Nullius, the Court upheld that European claims to ownership of Australia were substantiated by wrongful legal presumption which declared that Indigenous people had no settled laws governing the occupation and use of Australian land (National Museum Australia, n.d.). Hence, in recognising this misapplication, the Court further clarified that Indigenous rights to land, where they exist currently, will receive protection under Australian law until those rights are extinguished lawfully (National Museum Australia, n.d.). The newly identified doctrine of Native Title therefore replaced the 17th century doctrine of Terra Nullius, and this was characterised by the passing of the Native Title Act 1993 (Cth).
Native Title Act (1993): Overview
Giving effect to the Mabo decision, The Native Title Act (1993) statutorily affirms the recognitions at common law of the pre-existing systems of Indigenous law, known as Native Title (Cawthorn, 2019). As the Crown did not acquire absolute title at the time of settlement, it is subjected to pre-existing native titles that have not been validly extinguished. Therefore, the act Native Title Act (1993) sets out processes for Indigenous communities claiming native title rights, and the determination of native titles is done so through voluntary agreements or by courts (National Native Title Tribunal , 2019). The awarding of native title provides Indigenous communities with a collection of rights relating to land and can include: rights to camp, hunt, use water, hold meetings, perform ceremonies and protect cultural sites (Cawthorn, 2019). However, recognised rights are specific to each native title group and are determined on a case-by-case basis with consideration given to traditional laws, claims and past acts which may impair enjoyment of native title rights (Cawthorn, 2019).
The Native Title Act (1993) also outlines the interaction of the act with the rights and interests of other native and non-native title holders. Finally, the Native Title Act (1993) also established the National Native Title Tribunal as an administrator of the act, with specific roles in negotiating claims of native title and retrospectively identifying instances of lawful title extinguishment (The Native Title Tribunal Australia, 2020). The identification of a native title is known as native title determination; it is a decision by the federal court or another recognised body that native title does or doesn’t exist in relation to a particular area of land or waters (The Native Title Tribunal Australia, 2020). There are various types of native title claims under the act, they are as follows:
- Claimant: native title application is made by a group of people who claim they hold rights and interests in an area of land and/or water according to their traditional laws and customs; they are seeking native title determination in order to have this right recognised under common law.
- Non-claimant: application made by a person or organisation holding a non-native title interest in a particular area of water/land. The purpose of this application is to seek decision from the court as to whether a native title hold exists over the area of land. If no native title hold exists, then future acts of the non-claimant will be permissible over the specified area of land/water. An example of a non-claimant may be the commonwealth or state and businesses who hold a lease or licence to perform particular activities (e.g fishing, mining etc.)
- Compensation: application made by native title group, or by persons who assert that they hold native title rights and are seeking compensation for acts that have impaired or extinguished their native title.
The concept of extinguishment or partial-extinguishment of native title (section 237A) means that native title holders are no longer able or have impaired rights to exercise their customs in an area (Cawthorn, 2019). This occurs as a result of past acts that have taken place on an area of land prior to the enforcement of the Native Title Act. Past government acts, such as granting leases and construction of public areas are the most common forms of act which ‘impair’ or extinguish the enjoyment of native title rights, forming the basis in which applications for compensation are made (Cawthorn, 2019).
Linking to this, the proposal of future acts on areas of land which will impair or extinguish enjoyment of Indigenous native title rights presents prospects for agreement making between native title holders and other entities (National Native Title Tribunal , 2019). These agreements are commonly known as Indigenous Land Use Agreements (ILUAs). It is a voluntary agreement between native title holders and other entities, for example, mining or construction companies (National Native Title Tribunal , 2019). It intends to provide a mechanism for negotiating land use between native and non-native title holders, with respect to economic remuneration for Indigenous communities.
In order to receive recognition of Native Title and the rights to land/land agreements accompanied with it, Indigenous communities must provide evidence demonstrating their connection to specified water and land; they must prove that their customary laws existed in the area and that these customs have continued since colonialization (ibid. , 2018). The impacts of this procedural requirement will be considered in the next section when assessing the native title system and its effectiveness in administering justice for First Nations people.
Native Title Act (1993): Evaluation:
Any assessment of how well the native title system is working must always refer to: the purpose of the Native Title Act and the reasons the Australian Parliament enacted the legislation (to give effect to the Mabo decision).
Specifically, the Native Title Act (1993) proposes to:
- To provide for the recognition and protection of native title.
- To establish ways in which future dealings affecting native title may proceed and to set standards for those dealings.
- To establish a mechanism for determining claims to native title.
- To provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title
Keeping these objectives in mind, issues counterproductive to the purpose of the act are rooted in the overly technical enforcement of S223 of the Native Title act (ibid. , 2018). Specifically, this section outlines defining characteristics of native title, hence, through its statutory construction has expanded the requirements for proof of native title beyond the proposed scope of the act (Australian Law Reform Commission , 2015). This has resulted in an emphasis on the use of documentary evidence, revealing the difficulties faced by Indigenous people when attempting to satisfy the requirements of s223 in a western-court system. To prove the existence of native title indigenous groups must demonstrate their connection to land through customary law and that these customs have been maintained to present day (ibid. , 2018). Establishing this in a court of law is difficult to achieve, as historically, Indigenous rights to maintain their customary law and connection to land have been systematically negated by Government policy, via: their forcible removal from lands, forced cultural-assimilation and a denial of rights to practice customary law.
An example of this was the introduction of the Protection of Aboriginals and Restriction of the Sale of Opium Amendment Act in 1934. This act established lawful grounds for Government officials to remove Indigenous children from their parents and replace them in European families (ibid. , 2018). This discriminatory legislation gave effect to what is now regarded as “The Stolen Generation” and functioned to eradicate Indigenous customs by forcing Indigenous communities to assimilate into Anglo-centric society. The impacts of obstructed rights to practice customary law historically is still experienced today, whereby Indigenous communities are challenged in demonstrating a sustained linkage to their traditions and to land (Australian Law Reform Commission , 2015).
The Yorta Yorta v Victoria (2002) case exemplifies the previously mentioned challenges faced by Indigenous communities when attempting to satisfy requirements of S223 of the Native Title act. The decision in Yorta Yorta dismissed the claimant’s application to native title, and subsequently highlighted the common law requirements to satisfy S223 with substantial evidence. The preference within the Australian legal system for documented written evidence indicates the incompatibility with customary law which primarily consists of unwritten and oral systems of law (Australian Law Reform Commission , 2015). Hence, the likelihood of successful Native title claims is contingent upon a courts ability to admit opinion or hearsay evidence (ibid. , 2018). In the Yorta Yorta the judge emphasised that:
‘Success in a legal claim depends on (the) presentation of sufficient admissible evidence to establish it (the claim) in a court of law’.
Considering this, the dismissal of the claimants’ application is undeniably linked to the inadmissibility of oral evidence which constituted as hearsay in Australian court of law.
This limitation of The Native title act underlines the implications of European settlement and the adoption of one supreme form of law (common law system) which, through its operation, has greater recognition and application in society than other systems of law (Indigenous customary law). Therefore, it can be noted, that Australia’s system of law, can be criticised as a demonstration of “weak pluralism”, requiring reform so that Indigenous customs can be adequately received into Australia’s legal framework (Nursoo, 2018; ibid. , 2018; Australian Law Reform Commission , 2015).
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