Crawford, James --- "Letter to the Editor - Recognition of Aboriginal Customary Law: What Do We Expect?" [1983] AboriginalLawB 35; (1983) 1(9) Aboriginal Law Bulletin 12

• Letter To The Editor: Recognition Of Aboriginal Customary Law: What Do We Expect?
• Recognition Of Aboriginal Customary Law: What Do We Expect?

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Letter to the Editor:

Recognition of Aboriginal Customary Law: What Do We Expect?

by Professor James Crawford

Australian Law Reform Commission

Dear Sir

Recognition of Aboriginal Customary Law: What Do We Expect?

I welcome Neil Rees' comments on ALRC Research Paper 8 dealing with the Recognition of Aboriginal Customary Law (Aboriginal Law Bulletin, [1983] AboriginalLB 23; 1(8)pg10) (RP 8 is one of 12 such papers available on request from the Commission; 4 more are forthcoming.) The main point of such papers is to stimulate comment on the issues, to assist the ALRC in arriving at its recommendations. In order to achieve that result, and to avoid the impression that the ALRC has already made up its mind on the issues (which it certainly has not), the papers are deliberately expressed in a tentative form, and they attempt to deal with all the significant arguments that have been made to us. Thus the arguments for and against the recognition of Aboriginal customary law referred to by Rees are reports of arguments made to the ALRC: this does not necessarily imply agreement with all of them. The point of the paper, as of all the Commission's consultative papers, was not to expound personal convictions which may or may not be shared by other members of the ALRC, but to give some idea of the balance of arguments, and of the perceived issues, and to provoke response.

Another major purpose is to allow alternative proposals to be made. In this respect we would welcome comment on the other papers making specific proposals (e.g. DP18 (Family, Children and Property), RP 6 (Criminal law), RP 13 (Evidence and Procedure)). Are these proposals appropriate? What practical problems will arise in their implementation? What other proposals should be made.

At the same time it is obviously important to examine the general issues, as RP 8, 9 and 10 attempt to do. The major alternative suggested by Rees seems to be `that form of recognition which would allow customary law to operate exclusively in a particular area'. The issue will be explored in some detail in RP 11 (forthcoming) on `justice mechanisms' - but such proposals present difficulties quite apart from the artificial one of the Commission's terms of reference. In particular, if Aboriginal jurisdiction is to be recognised in particular territorial areas, why should it be recognised only on condition that it be exercised in ways we would perceive as customary? One of the features. of the Canadian debate at present is their focus on issues of self-government, without preconditions as to the results of that self-government. But the point was also clearly recognised by the NAC in their Makarrata demands (1981, point 9): the recognition of Aboriginal customary law was not an absolute but a conditional demand, 'in those territories which deem it necessary'. To treat Aboriginal customary law as the channel through which autonomy or self-government for Aborigines must come, is to distort the issue - some would say to put the cart before the horse.

It may be that this conception of the Reference makes the ALRC. more peripheral to general Aboriginal demands than it might otherwise be. That is a matter for Aborigines rather than the ALRC, which can only respond to the terms of reference given it by the Attorney-General of the day. But the ALRC does not and cannot represent Aboriginal opinion: its real role is one of the articulation of legal and administrative possibilities for subsequent discussion between the government, representing the Australian community, and Aboriginal people. In this dialogue the ALRC is, and ought to be, peripheral. But it may also be helpful - hence the plea for comment and response on its consultative papers.

A final point on 'political realism'. In this as in all its References, the ALRC's function is not to produce `politically realistic' recommendations, in the sense of recommendations acceptable to the Government of the day. The ALRC's task is to make whatever recommendations it thinks desirable, within its terms of reference, taking into account the opinions expressed to it and other relevant considerations. This is a difficult task in the context of the present Reference - but not one to be controlled by our (quite possibly mistaken) perceptions of `political realism'.

Yours sincerely,

PROFESSOR JAMES CRAWFORD

Commissioner in Charge

Reference on Aboriginal Customary Law

Australian Law Reform Commission