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McLaughlin, Rob --- "Some Problems and Issues in the Recognition of Indigenous Customary Law" [1996] AboriginalLawB 45; (1996) 3(82) Aboriginal Law Bulletin 4

Some Problems and Issues in the Recognition of Indigenous Customary Law

by Rob McLaughlin

What is the legal force that can be given to Indigenous culture? The High Court decision in Mabo v Queensland [No. 2][1] (`Mabo [No. 2]') rests upon two fundamental propositions: that Australia was not terra nullius in 1788; and that native title, based on the traditions of the Indigenous people of the land, must consequently exist.[2] This requires that the legal fiction of a land `occupied by a people without settled laws or customs'[3] which attended the concept of terra nullius also be finally dismissed, thus giving belated legal force to the long recognised fact that Indigenous Australian societies possessed, and continue to possess, `well-developed systems of law'.[4] To date, however, most governmental, judicial and public acceptance of this fact has been manifest in terms of relationships to land, native title, and recognition of this country's history of persecution and dispossession. But they are by no means the only faces of the issue: and the Native Title Act 1993 (Cth) (`the NTA'), as the then incumbent Government explained, is only part of a reconciliation and social justice package in which `such issues as constitutional reform, indigenous rights [sic], heritage protection, self-government and customary law' were to be canvassed.[5] It is the last of these issues, the place of Indigenous customary law in the wider Australian legal landscape, which is my focus; for while the High Court has now recognised the existence of customary law, it has done so `without an examination of its nature and other problems associated with such recognition'.[6]

Can Indigenous customary law can ever be fully recognised or accommodated under the current Australian legal system? In exploring this question, I will conduct a broad sweep over three major issues. First, I will look at customary law and the issue of sovereignty, which is really the threshold test of admissibility. This will be followed by a discussion of customary law and the Constitution. Finally, I will attempt a brief survey of some specific issues and problems that may arise in the recognition process--philosophical norms, the Racial Discrimination Act 1975 (Cth) (`the RDA'), human rights and punishment, and jurisdiction. Prior to embarking on this discussion however, I will briefly outline the concept of customary law as used throughout this paper.

Customary law--a definition

Colin Bourke and Helen Cox, among others, have observed that Indigenous customary law is `difficult to define in non-Indigenous terms because it covers the rules for living and is backed by religious sanctions. It also prescribes daily behaviour'.[7] Kenneth Maddock observes that `Actions as diverse as the making of fire ... the mating of bandicoots ... and the avoiding of mothers-in-law are subsumed under djugarura [an established and morally-right order of behaviour]'.[8] As with all systems of culture and law, it has evolved with circumstances and continues to do so; and in many ways is comparable to Talmudic Law or Koranic Law, in that it relies on both religious and temporal sanctions for its force, and purports to organise daily existence in compliance with divine guidance. Robert Tonkinson's anthropological definition, for example, is specific to the Mardudjara he has studied, but his suggestion that customary law `connotes a body of jural rules and moral evaluations of customary and socially sanctioned behaviour patterns'[9] is of wider application. Perhaps the best definition, however, is one as to content rather than description, and to this end Ronald Berndt offers an acceptable amalgam. Indigenous customary law, he writes, is the sum of three sets of relationships--people and land, people and deities, and people and people--and of three highly interdependent factors which act upon these relationships--religion, natural environment, and social organisation/kinship.[10] With these concepts in mind, it is now possible to briefly outline the conflicts that arise when discussing any recognition of inherent, organic legal force for customary law within the confines of Australian sovereignty.

Customary law and sovereignty

Austin declared that sovereignty was both indivisible and illimitable, but the advent of a practical community of nations has necessarily limited this to some extent. Domestically, sovereignty, as indivisibly vested in `the Crown', is a paramount power to make, unmake and enforce law, and as Justice Jacobs noted in Coe v The Commonwealth,[11] the legal system must reject as non-justiciable any `claim based on a sovereignty adverse to the Crown'. Consequently, this notion of sovereignty cannot conceive of any alternative and equal system of law existing within its sphere.

For this reason Australian courts have always clearly and consistently `refused to entertain any concept of Indigenous sovereignty as it is against their powers to question the legitimacy of Australian sovereignty'.[12] Participants from all sides of the debate have clouded the issue with a myriad of differing concepts. Some commentators, for example, have couched the issue in terms of independence of an `Aboriginal Nation', observing that:

`It is possible to develop a cogent argument that the acquisition of British sovereignty over Australia without "the consent of the natives" was, even in the context of the time, contrary to both international and British law. The problem remains one of finding a forum before which such an argument can be effectively asserted at this time'.[13]

Others have offered more domestic and moderate concepts such as `self-management', `self-determination' and `internal self-government'.[14] Garth Nettheim suggests:

` ... that the approach taken by the majority of the High Court in Mabo in regard to land rights is at least capable of being applied to acknowledge some forms of sovereignty or inherent powers of self-government in Aboriginal or Torres Strait Islander peoples that retain a sufficient degree of social cohesion. Recognition of such self-government rights would not challenge the overall sovereignty of the Australian state`.[15]

Other writers have suggested that the right need not rely on Mabo [No. 2] for its authority, and that it has always existed such that `a mere change in sovereignty has not extinguished the right of local communities to self-government and/or self-determination'.[16] Yet the difficulties generated by the dominant view of sovereignty, in both international and domestic legal terms, necessarily limit any scope for the operation of Indigenous customary law from the outset. Some, such as Catherine Iorns, have made persuasive arguments for widening the concept of `self-determination', but have agreed that `the feared violation of the constitutive principles of modern (statist) international law and relations: territorial integrity, non-intervention and thus state sovereignty' continue to act as `barriers' to a more human rights orientated and sympathetic ideal of sovereignty.[17] Frank Brennan makes an important clarification when he observes that self-determination for Aboriginals within the Australian context is more a term of politics than a justiciable cause or a term of `legal precision'.[18] It is broadly accepted today that `true' Indigenous sovereignty is unattainable within the current legal system, but that a form of internal self-regulation is achievable, and it is within this general framework that any practical discussion on customary law as `law' must be grounded.

The current situation

The consequence of such initial acceptance that true sovereignty is not an issue, is that we can establish what role customary law presently plays within the legal system. The Aboriginal and Torres Strait Islander Commission (ATSIC) has declared that the High Court in Mabo [No. 2]:

` ... held that native title is defined according to the traditional laws and customs of people having the relationship with the land. In making this judgment the court therefore recognised another source of law--a very significant development in itself'.[19]

ATSIC has further stated that in Mabo [No. 2] the High Court `has recognised traditional land law--a distinct body of law in addition to the common law of Australia',[20] seemingly arguing that this portion of customary law has been given its own organic, inherent legal force within the Australian legal landscape. It is arguable, however, that what the High Court did was to recognise customary law as a tool, an appropriate investigative mechanism with which it can determine an interest in, or establish a connection to, land, rather than adopting customary law directly into the law of Australia. The High Court's approach, I would contend, is to look to customary law to establish the contents of certain traditional rights, but to then give effect to those rights by an order of a court. It is the order of the court which is the legal mechanism that actually gives the right legal force; and it is the determination of the court, not the customary law right, which is the justiciable and enforceable chose. This has to be the case when the essence of common law is that it is `judge-made law'.[21] Customary law only takes effect to the extent that a Court (or National Native Title Tribunal--the NNTT) determination gives it force. Justice Brennan in Mabo [No. 2] said that:

`native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous [sic] inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact [not law] by reference to those laws and customs'.[22]

Thus the content of a customary law right is determined (logically) by reference to customary law, but once existence is established, it is statutory mechanisms or else the common law that endows force. It is not the customary law that gives force, and this is a vital distinction in terms of customary law having any effect at all--even if only indirect--in a sovereign legal system. When H Amankwah opines that `the High Court's decision ... amounts to an implied legal recognition of Aboriginal customary law',[23] it is arguable that such implied recognition extends only to this `question of fact' extent, and not to recognition as substantial law. Reference to two specific legal issues--native title and mitigation--will best illustrate this point.

Native title

As has been outlined above, customary law is the tool to which a court or the NNTT will first refer in determining if an interest under the NTA exists.[24] Customary law is a reference, a question of fact rather than an item of enforceable substantive law in its own right. The NNTT, for example, pursues a `process for determining claims',[25] rather than entrenching specific customary law provisions into the common law. Under the NTA, the determinations of the NNTT have the effect of an order of a court (s167), thus indicating that the legal force is found not in any inherent legal effect possessed by customary law, but in courts themselves as producers of law. Customary law is the primary factor taken into consideration in a native title claim, but it is not determinative of the issue. The NNTT looks further than customary law alone--for example lease, continuing connection--and can defeat what may be in customary law an indefeasible claim. Section 223(1) of the NTA, defining native title, specifically expresses it to be rights and interests possessed under traditional law, but further requires that connection be proven, and it is only after consideration of further factors alien to customary law that any common law force is given to the right. Customary law itself is therefore not decisive, and this further supports the argument that it is not customary law which has legal effect under the NTA, but the resultant orders. Customary law is, consequently, still only a tool of reference and not a legal system having its own inherent legal force in the wider Australian system.

Mitigation

Courts have long taken Indigenous customary law into account as a factor in mitigation when dealing with, most generally, criminal offences involving Indigenous Australians. A 1932 report commended courts in the Northern Territory for judicial notice of customary law in that `customary law was sufficiently taken into account in the Magistrates Court and the Supreme Court ... by way of "substantive defence as negativing criminal intent or, more frequently, in mitigation of sentence" `.[26] A 1933 law specifically enabled a sentencing Court `to take into account any relevant native law and custom' in mitigation, particularly in murder cases involving Indigenous accused and victim. Similar provisions followed in other jurisdictions[27] : the Queensland Community Services (Aborigines) Act 1984 (Qld) and its predecessors, for example. However, this recognition of customary law does not give it legal force: it simply accommodates it as another psychological state or influence to be taken into account as a mitigating circumstance. As the Australian Law Reform Commission concluded, `the customary laws and practices of Indigenous people were denied any formal recognition by the general law'.[28]

Customary law and the Constitution

Justice Deane, in the High Court case of Re: Tracey; Ex parte Ryan, observed that the Constitution is based upon the doctrine of separation of powers, and that:

`To ignore the significance of the doctrine or to discount the importance of safeguarding the true independence of the Judicature upon which the doctrine is predicated is to run the risk of undermining, or even subverting the Constitution's only guarantee of due process ... The power to adjudge guilt of, or determine punishment for, breach of law ... and the power to decide controversies about existing rights and liabilities all fall within the concept of Judicial power'.[29]

This assertion has obvious effects as to the status of `second' or `subordinate' systems of law. An assessment of the Constitutional implications of customary law recognition may be gained by referring to the High Court's findings on an already established subordinate system--military law under the Defence Force Discipline Act 1982 (Cth) (`the DFDA').

A long line of cases have established that the Constitutional authority for the existence of military law is s51(vi)--'The Naval and Military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth'. An understanding of the reasoning behind this will enlighten the issue of recognition of customary law.

The starting point is Chapter III of the Constitution--The Judicature--particularly the judicial vesting power of s71. The High Court has consistently concluded that the exercise of power by courts martial is `judicial in character',[30] and this is evident in many aspects of their operation such as burdens of proof and the requirement to act `judicially' to ensure that the `enforcement of military discipline is just'. However, this does not mean that military law is truly `judicial' as contemplated in Chapter III,[31] for if this were so military law and courts would necessarily exist as equal to, yet separate from, the general law. The courts have consistently concluded that no such intention is evident. For example, the privilege against self-incrimination has been imported into the DFDA by courts applying the superior principles of the `Law of the Land', as has the requirement for the observance of `natural justice'.[32] The DFDA specifically provides that offences of murder, manslaughter, rape, treason and bigamy, although triable under military law, are to be tried by criminal courts unless the Attorney-General otherwise decides, further indicating the superiority of general law.[33] Provisions on double jeopardy (DFDA s190(4)) act to prevent the injustice of punishment under both codes, indicating that military law is not exclusive, but is a subordinate part of the wider law. As the High Court noted in McWaters v Day, quoting a dictum of the then Justice Dixon, inconsistency is itself a manifestation of paramountcy of one law over others.[34]

Military law, therefore, is to be contemplated as a parallel system exercising a function supplementary to the wider legal system. Consequently, Chapter III cannot support the idea of military law as a second, equal system of law. The source of military law derives from s51(vi) of the Constitution, and is therefore incorporated in the general law of Australia. This also means that the scope of such subordinate systems of law is limited by the words of its authorising head of power. Thus the importing of civil/criminal offences into the DFDA as military offences is only permissible where `the proscription of that conduct is relevant to the maintenance of good order and discipline in the Defence Forces', because such order and discipline is deemed integral to the `control' of the forces as anticipated under s51(vi), and because `naval and military defence demands the provision of a disciplined force or forces'.[35] Further, `efficiency and good order' are integral to both the `control' and `defence' sub-powers of s51(vi).[36] Similarly, military law cannot be read as a challenge to the Constitution--'an object of the defence power is the preservation of the civil government ... a characteristic of which is the administration of the criminal law by the ordinary courts', and as a consequence, military law and courts cannot have `judicial powers which are supplantive rather than supplementary' of the general law.[37]

The consequences of this line of reasoning are illuminative for the recognition of customary law. First, any legislative action with respect to customary law can probably not exceed the status courts have allowed to military law--to do so would offend both the Constitution and Australian sovereignty. As Chapter III cannot be the authorising power, any action on customary law will likely be under the `races' power of the Constitution, s51(xxvi)--'the people of any race for whom it is deemed necessary to make special laws'--which will most likely be read with the relevant treaties adopted under the external affairs power (s51(xxix). The wording of the races power would then have to be found to specifically support customary law legislation, just as the `control' and `defence' objects of military law have been accepted. It is probably only on these terms that any actions to recognise Indigenous customary law as a second, subordinate system of law will be successful constitutionally. However, this raises a range of issues which may be unpalatable for many, such as the official subordination and express legislative control of customary law which would necessarily result.

Customary law and some specific problems of recognition

Philosophical basis

The clash of Indigenous and settler cultural systems was:

`a fundamental clash of principle, the outward showing of one of the most significant moral and political struggles in Australian history. The settlers were transplanting a policy of possessive individualism, hierarchy and inequality. Aboriginal society was reciprocal and materially egalitarian ... One or the other had to prevail'.[38]

This diametrical difference in philosophical basis is important in assessing the degree to which customary law can ever be recognised in Australia. `Twenty-three years ago', observed Kenneth Maddock in 1984:

`the anthropologist WEH Stanner wrote that Aboriginal customary law conflicted in almost every respect with the root assumptions of Australian law. The two were irreconcilable in notions of tort and crime, in procedures of arrest and trial, in concepts of admissible evidence, and so on.[39]

This is perhaps most strikingly displayed in a single sentence in a British Parliamentary Report of 1837--'Actions which they [Aborigines] have been taught to regard as praiseworthy we consider as meriting the punishment of death'.[40] The essence of these differences may be superficially grasped by looking at three basic tenets of customary law: reciprocity, religion, and the importance of the group.

`Reciprocity and sharing were central to the social organisation and ethical standards of traditional society', wrote Henry Reynolds,[41] a fact emphasised by most commentators on traditional Indigenous culture.[42] And while sharing without question and the reciprocity of response in kind, are `the greatest social good',[43] these ideals conflict in many ways with the individualistic and possessive system of Australian law; whilst the maxim of `an eye for an eye' is positively unlawful. Similarly, whilst Judeo-Christian morality does impact upon Australian law, the role of the spiritual in customary law is indivisible from its application. Land is a `spiritual resource' held `in trust for the deities and future generations'[44] --a concept foreign to the legal system. Spiritual sanction, a stand-alone punishment in customary law, is not sufficient in Australian law. Finally, the need for maximum cooperation in Indigenous societies manifests itself in a `greater emphasis on social identity, membership of a group and the obligations and responsibilities of individuals to conform to the expectations of others', contrasting with the Western emphasis on individualism.[45] It is group interests and rights, with the attendant importance of kinship systems in law, which shape customary law.

The Racial Discrimination Act 1975 (Cth)

Such philosophic differences are accompanied by a variety of practical problems in customary law recognition. The first of these is the RDA itself. The objects of the RDA, according to the Human Rights and Equal Opportunity Commission, are `to promote the equality before the law of all persons regardless of their race, colour or national or ethnic origin [and] to make discrimination against people on the basis of race, colour or national or ethnic origin unlawful'.[46] The RDA is designed to give effect to the Convention on Elimination of All Forms of Racial Discrimination, and makes it unlawful to:

` ... do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedoms'.[47]

Section 10 further emphasises the ideal of `equality before the law as essential', just as Michael Lavarch, whilst Attorney-General, stressed the non-discriminatory essence of legislation dealing with Indigenous issues.[48] It is arguable that customary law would not qualify under the `special measures' exception of s8 of the RDA, and the Convention itself stresses the objective of equality of rights, notably the right to `equal treatment before the tribunals and all other organs administering justice'.[49] The maintenance of a separate system of law for Aborigines would therefore be in breach of the RDA; and even if customary law's jurisdiction were made voluntary, it may still be discriminatory in that only Indigenous Australians could apply to come under its terms.

Human rights and punishment

Having ratified a variety of Conventions regarding Human Rights, including those on Discrimination, and on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, further problems in the recognition of customary law arise. Punishment is integral to customary law, with punishment being both a temporal and reciprocal response tailored to the actual transgression committed,[50] and a specific spiritual corrective for the religious imbalances created by the transgression. Consequently, punishments under customary law often seem harsh to non-Indigenous people. Sir Edward Gray, in his 1840 report on customary law, declared that `English law should supersede customary law in order to protect an Aborigine from the violence of his fellows'.[51] Penalties under customary law range between `death, wounding, fear of sorcery, corporal punishment and abuse or ridicule',[52] and many of these finely-balanced traditional sanctions are unlawful under both Australian law and those Conventions to which it ascribes. Even where traditional punishments have evolved with the intrusion of settler culture, many still transgress general law.[53] Death and wounding are illegal, and exile cannot be countenanced due to the Convention on Civil and Political Rights. Article 24 of the Draft Universal Declaration on Rights of Indigenous Peoples also stressed the need for responsibilities and rights to be `consistent with universally recognised human rights and fundamental freedoms'.[54] Any argument to the effect that requiring such compliance `is an attempt to effectively negate the very right of indigenous peoples to have their own customs by imposing non-indigenous cultural values on them'[55] would likely fail--it is unconscionable to place Indigenous rights under the banner of human rights, but to then exclude the operation of those human rights within customary law.

Procedural issues

Customary law includes within its ambit offences which are `sins of omission' towards others, such as `failure to share food, to avoid particular relations, [or] perform rituals',[56] which are unsustainable under even the most generous approach to Australian law. Similarly, evidential issues such as the almost universal attribution of death in apparently healthy or young people to `malevolent sorcery' and the use of counter-sorcery[57] must complicate any recognition of customary law under general law. The constitution of appropriate `courts', the power of elders as the arbiters of customary law, the problem of appeals from the decisions of elders, and the question of the judicial force to be lent to customary law determinations, would all need resolution. A further obstacle would be the relative lack of systematic studies of Indigenous legal codes, a result of the fact that, for the majority of Australians, `local law and custom were officially ignored' until relatively recently. Those studies that do exist are overwhelmingly anthropological, rather than legal or jurisprudential, in nature. This situation is compounded by the fact that the Indigenous tradition itself is primarily an oral one.[58] A possible remedy for this paucity of information, as suggested by Elizabeth Eggleston and others, is that in the future `courts ... make the fullest use of anthropologists as expert witnesses ... and that they ... treat anthropological publications as invaluable source material'.[59] The use of Indigenous elders as expert witnesses/specialists is another avenue which courts could consider.

Jurisdiction and diversity

Finally, the issue of jurisdiction is important in any consideration of customary law recognition. First and foremost is the definition of `Indigenous', and whether a person must pass a governmental or legislative test, or the more culturally- and locality-sensitive definition arising out of the body of cultural law concerned. `Aboriginality' under some systems may have specific domicile, cultural awareness, ritual involvement and tribal affiliation requirements and implications. This is what N Williams has called `fitness' to come under a customary jurisdiction and involves a myriad of geographic, kinship, character, spiritual and social concerns.[60] This is a jurisdictional question as to `whom', but equally important jurisdictional questions as to `where' also exist. As Paul Coe and others have observed, Aborigines are generally `treated as a group of individuals within Australian society, as opposed to a collection of distinct, separate societies',[61] highlighting the oft-forgotten fact that Australia was not `an Aboriginal nation ... prior to European invasion', but rather a patchwork of culturally and linguistically distinct `countries'.[62] Thus arise problems of territorial jurisdiction and the question of which specific body of customary law applies--that of the person's kin and tribe, their domicile, or that of the place where an offence is committed. Each distinct system is the product of specific local needs, territory and myths, and the consequent diversity of sets of customary laws Australia therefore creates further jurisdictional problems. A final issue is how to accommodate adaptations which have developed in specific bodies of customary law due to contact with the settler legal system. An example of such an issue is the distinction some systems draw between `big trouble' and `little trouble', or `public' and `private' issues, and the complications this adds to jurisdictional allotment.[63]

Conclusion

This paper has been an attempt to outline some of the problems that may arise with any legislative or judicial action purporting to give legal effect to Indigenous customary law. Any such action must take into account not only the threshold issues of sovereignty and Constitutional authorisation, but also a whole range of practical and philosophical problems in procedure, application, jurisdiction, and conflict with general law. It is possible that, in this very complex legal and cultural issue, an incremental approach, building upon the foundations laid in Mabo [No. 2], will achieve the most. A gradual and piecemeal scheme of incorporation into the common law, not as `law' but as a referential tool, probably offers the most practical and flexible approach. Under such a program, specific propositions and concepts in customary law are given effect under the wider legal system, such as exists with native title, once they are adopted, and conflicts with the sovereign system of law are resolved.[64] It seems clear, however, that any attempt to give wholesale recognition and legal force to customary law in toto will necessarily find itself at the centre of a practical and constitutional minefield which may, frustratingly, render it effectively unworkable.


[1] [1992] HCA 23; (1992) 175 CLR 1.

[2] M Lavarch in Commentary on the Native Title Act 1993, AGPS, Canberra, 1994, page 1.

[3] `Two Laws, One Land', H Cox et al in Aboriginal Australia, Bourke et al, UQP, Brisbane, 1994, page 52.

[4] `Traditional Concepts of Aboriginal Land', R Berndt in Aboriginal Sites, Rights and Resource Development, UWAP, Perth, 1981, page 1.

[5] Current Issues: The Mabo Judgement, ATSIC, Canberra, 1994, page 7.

[6] `Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia', H Amankwah in [1994] UQLawJl 3; (1994) 18(1) University of Queensland Law Journal 15.

[7] `Two Laws, One Land', H Cox et al in Aboriginal Australia, Bourke et al, UQP, Brisbane, 1994, page 49.

[8] `Aboriginal customary law', K Maddock in Aborigines and the Law, P Hanks and B Keon-Cohen (eds), Allen & Unwin, Sydney, 1984, page 213.

[9] `Aboriginal customary law', K Maddock in Aborigines and the Law, P Hanks and B Keon-Cohen (eds), page 212.

[10] `Traditional Concepts of Aboriginal Land', R Berndt in Aboriginal Sites, Rights and Resource Development, UWAP, Perth, 1981, pp1-3.

[11] [1979] HCA 68; (1979) 53 ALJR 403 at 409.

[12] `Two Laws, One Land', H Cox et al in Aboriginal Australia, Bourke et al, UQP, Brisbane, 1994, page 61; see also Indigenous People and the Law in Australia, C Cunneen et al, Butterworths, Sydney, 1995, page 193.

[13] ` The Consent of the Natives": Mabo and Indigenous Political Rights', G Nettheim in Essays on the Mabo Decision, LBC, Sydney, 1993, page 109. See also `The Court Gives an Inch but Takes Another Mile: The Aboriginal Provisional Government Assessment of the Mabo Case', M Mansell in Vol 2, 57 Aboriginal Law Bulletin 6.

[14] See for example Reconciling Public Accountability and Aboriginal Self Determination/Self Management, Discussion Paper No. 51, W Sanders, Centre for Aboriginal Policy Research, ANU, 1993, page 14; `ATSIC: Self Determination or Otherwise', P Coe in Vol 35, No. 4 Race and Class, Apr-Jun 1994, page 37.

[15] ` The Consent of the Natives": Mabo and Indigenous Political Rights', G Nettheim in Essays on the Mabo Decision, LBC, Sydney, 1993, page 111.

[16] `Aboriginal Law Does Now Run in Australia', B Hocking in Essays on the Mabo Decision, LBC, Sydney, 1993, page 74.

[17] `Indigenous Peoples and Self Determination: Challenging State Sovereignty', C Iorns in Murdoch School of Law 1992 Occasional Papers, page 107.

[18] Sharing the Country, F Brennan, Penguin, Middlesex, 1991, pp43-52.

[19] Current Issues: The Mabo Judgement, ATSIC, Canberra, 1994, pp4-5.

[20] Current Issues: The Mabo Judgement, ATSIC, Canberra, 1994, page 8 (my italics).

[21] `Mabo: Another Triumph for the Common Law', R Bartlett in Essays on the Mabo Decision, LBC, Sydney, 1993, page 59.

[22] [1992] HCA 23; (1992) 175 CLR 1.

[23] `Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia', H Amankwah in [1994] UQLawJl 3; (1994) 18(1) University of Queensland Law Journal 15, page 32.

[24] See The Native Title Act 1993: A Plain English Introduction, ATSIC, Canberra, 1994, page 3; A Guide to the National Native Title Tribunal, ATSIC, Canberra, 1994, page 2.

[25] The Hon PJ Keating, Member for Blaxland, Parliamentary Debates (Hansard), House of Representatives, 16 November 1993, page 2878.

[26] Australian Law Reform Commission, Report No. 31, AGPS, Canberra, 1986, page 42.

[27] Australian Law Reform Commission, Report No. 31, AGPS, Canberra, 1986, pp44-7.

[28] Australian Law Reform Commission, Report No. 31, AGPS, Canberra, 1986, page 48.

[29] [1989] HCA 12; (1989) 166 CLR 518 at 522.

[30] Re: Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 525.

[31] X v McDermott, Unreported, Federal Court decision DG2 of 1994, page 2.

[32] X v McDermott, Unreported, Federal Court decision DG2 of 1994, pp12-14.

[33] Re: Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 527.

[34] [1989] HCA 59; (1989) 168 CLR 289 at 291.

[35] Re: Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 529, 546; Re: Tyler and Ors; Ex parte Foley, Unreported, High Court decision FC94/024 of 1994, page 2.

[36] McWaters v Day (1989) 169 CLR 289 at 292.

[37] Re: Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 557, 568.

[38] The Other Side of the Frontier, H Reynolds, Penguin, Middlesex, 1981, pp69-70.

[39] `Aboriginal customary law', K Maddock in Aborigines and the Law, P Hanks and B Keon-Cohen (eds), Allen & Unwin, Sydney, 1984, pp232-3.

[40] In Australian Law Reform Commission, Report No. 31, AGPS, Canberra, 1986, page 37. This problem is still recognised as a significant obstacle, at least by many anthropologists; see for example `Aboriginal customary law' by K Maddock, page 230.

[41] The Other Side of the Frontier, H Reynolds, page 68.

[42] See for example H Cox et al in Aboriginal Australia, page 51.

[43] The Other Side of the Frontier, H Reynolds, page 147.

[44] `Traditional Concepts of Aboriginal Land', R Berndt in Aboriginal Sites, Rights and Resource Development, UWAP, Perth, 1981, page 9.

[45] R Berndt in Aboriginal Sites, Rights and Resource Development, pp3-4.

[46] Indigenous People and the Law in Australia, C Cunneen et al, Butterworths, Sydney, 1995, page 189.

[47] RDA s9; Pt 1 Art 1(1) of the Convention.

[48] M Lavarch, `Forward' in The Native Title Act 1993, AGPS, Canberra, 1994, page iv.

[49] See Articles 2, 4 and 5.

[50] The Other Side of the Frontier, H Reynolds, page 76.

[51] Australian Law Reform Commission, Report No. 31, AGPS, Canberra, 1986, page 38.

[52] `Two Laws, One Land', H Cox et al in Aboriginal Australia, Bourke et al, UQP, Brisbane, 1994, page 51.

[53] See for example `Aboriginal customary law', K Maddock, pp224-227.

[54] UN Draft Declaration on the Rights of Indigenous Peoples 1990, page 3.

[55] `The Draft Declaration on the Rights of Indigenous Peoples' C Iorns, Vol 3, 64 Aboriginal Law Bulletin 4.

[56] H Cox et al in Aboriginal Australia, pp50-1.

[57] The Other Side of the Frontier, H Reynolds, page 72; `Aboriginal customary law', K Maddock, page 219.

[58] `Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia', H Amankwah in [1994] UQLawJl 3; (1994) 18(1) University of Queensland Law Journal 15, page 212.

[59] `Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia', H Amankwah, page 217. Amankwah recommends reference to the work of sociologists, political scientists, and historians to compensate for this absence of legal materials: page 217.

[60] `Conflict of Jurisdictions', N Williams in Two Laws: Managing Disputes in Contemporary Australia, AIAS Press, Canberra, 1987, page 150.

[61] `ATSIC: Self Determination or Otherwise', P Coe in Vol 35, No. 4 Race and Class, Apr-Jun 1994, page 36.

[62] ` "The Consent of the Natives": Mabo and Indigenous Political Rights', G Nettheim in Essays on the Mabo Decision, LBC, Sydney, 1993, page 111.

[63] Helen Cox and Kenneth Maddock offer specific examples of such distinctions.

[64] See, for example, the `Repugnancy Rule' in `Post-Mabo: The Prospect of the Recognition of a Regime of Customary (Indigenous) Law in Australia', H Amankwah, page 26, as one possible mechanism which could be used in this process.


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