Kamien, T --- "Implementing Self-Government: An Examination of the Aboriginal Communities Act (Western Australia)" [1995] MurdochUeJlLaw 8; (1995) 2(1) Murdoch University Electronic Journal of Law

IMPLEMENTING SELF-GOVERNMENT - AN EXAMINATION OF THE ABORIGINAL COMMUNITIES ACT (WESTERN AUSTRALIA)

Author:	T Kamien School of Law, Murdoch University
Issue:	Volume 2, Number 1 (April 1995)

1.  INTRODUCTION

With the colonisation of Australia by Britain came massive dispossession and alienation of Aboriginal people.  As successive governments moved through policies of pacification, protection, assimilation and integration, the right of Aboriginal people to control their own lives, in all aspects, was systematically denied.

In the face of all this, and in spite of severe political, economic, cultural and social dislocation, Aboriginal people have maintained a vibrant and meaningful culture.  They have, throughout, sought to express their freedom and independence.

In the early seventies, in response to this, and to the growing recognition of indigenous[1] rights in international law, the government policy relating to Aboriginal people became one of self-determination. One initiative to come out of this climate was the Aboriginal Communities Act 1979 (WA).

In this essay I analyse the Aboriginal Communities Act and examine the extent to which it meets the requirements of self-government contained in the United Nations Draft Declaration on the Rights of Indigenous Peoples.[2]

2.  INTERNATIONAL LAW AND THE DRAFT DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES

2.1.  The Development of Indigenous Rights in International Law

The requirement of self-government is emerging in the international sphere as part of the general raised consciousness regarding indigenous peoples. This, however, has been a gradual process.

The International Labour Organisation has been concerned with indigenous peoples as a group since the 1957 Indigenous and Tribal Peoples' Convention No. 107.  At the time, this was the only international instrument to address indigenous rights expressly.  It has since then been viewed as unacceptably assimilationist in its policy orientation.[3]

During the next three decades, there was pressure from indigenous organisations calling for the adoption of new legal standards aimed at achieving the goal of self-determination.  In 1986 this Convention was reviewed and in 1989 the new Indigenous and Tribal Peoples' Convention, No. 169, was adopted.  While it did not meet all the aspirations of indigenous organisations, it was a substantial improvement on ILO 107.  It recognised indigenous peoples' separate identity and set minimum standards.[4]

At around the same time, in the early 70's, an awareness began developing at the United Nations of the need to properly address the indigenous cause. Special Rapporteur, Jose Martinez Cobo[5] commenced a comprehensive study of the problem of discrimination against indigenous populations which lasted several years and made many recommendations.

The Draft Declaration has emerged from this context and is an important indication of the current international attitudes to the status of indigenous peoples.

2.2.  The Draft Declaration

Amidst the growing awareness of indigenous concerns, the United Nations Economic and Social Council, in 1982, authorised the Sub-Commission on Prevention of Discrimination and Protection of Minorities to establish the Working Group on Indigenous Peoples[6] (WGIP).[7]

According to Sanders[8]

"The establishment of the working group was both dramatic and modest.  For th e first time indigenous people had specific access to the United Nations. They had their own international forum.  But the working group had no adjudicatory powers and was at the lowest level in the system."

Nevertheless, it is important to remember that a Declaration is the first stage in the standard setting process and while not legally binding, it is the first step toward the establishment of a Convention which, if ratified, is legally binding on signatory States.[9]

The final Draft Declaration on the Rights of Indigenous Peoples was presented to the Sub-Commission on Prevention of Discrimination and Protection of Minorities on 23 August 1993.[10]

Article 31 proclaims a general right of indigenous peoples to self-government.  It states that:

"Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal or local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resource management, environment and entry by non-members, as well as ways and means for financing these autonomous functions."[11]

The Draft Declaration is important because it reflects a realisation that the collective rights of the world's indigenous peoples require special recognition.  It is justified on the basis of their unique identity and is necessary to the preservation of that identity.[12] The Declaration sets vital minimum standards, which, though not currently legally binding, affect Australia's human rights obligations and international standing.[13]

2.3.  Self-government:  What Does it Mean?

Currently, Australian Governments promote a policy of self-determination, not self-government.  There are significant ideological differences informing these policies as they are construed by the Australian Government.

Self-determination as a government policy aims at providing Aboriginal people with a measure of independence from European Australians and entitling them to retain their racial identity, their languages, customs and distinct lifestyles.[14] Self-government, on the other hand, implies autonomy with a devolution of selected powers from Governments to local communities.  It acknowledges that Aboriginal people have Constitutional interests which they themselves should represent in negotiation with Government.[15] Self-government, however, does not have a clear definition.  It is a continuing process which evolves over time in accordance with local needs and regional aspirations.[16]

In the context of the Draft Declaration, however, self-government is construed as one aspect of self-determination.  This has a broader meaning than that given by Australian Government policy.  In this context, self-determination means, 'the right of non-self-governing peoples to choose freely and democratically between independence and some degree of legally entrenched autonomy within a federal state or association of states'.[17] The concept of self-determination in international law 'encompasses a right to regain sovereignty or powers of self-government lost to colonial or other dominant nations'.[18]

Article 1 of the International Covenant on Civil and Political Rights[19] states that '[a]ll peoples have the right to self-determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural developments'.

Dodson[20] states, however, that;

"[t]he Commonwealth policy of self-determination is not based on the recognition of any inherent right of Aboriginal ... people to freely determine [their] political status and economic, social and cultural development.  Such decision-making power as is exercised under the policy is based on a delegation of power from the supreme political power of the Australian State.  Fundamentally, the power to make decisions relating to Aboriginal ... economic, social and cultural development is given to indigenous Australians as a matter of mere administrative arrangement."[21]

Essentially, autonomy and the protection of human rights against government interference and abuses depends entirely on who governs. However, Australian Governments are opposed to anything that resembles separatism, which is viewed as threatening to the notion of a united, homogenous Australia.

In the following section, I examine whether the Aboriginal Communities Act 1979 meets the standard of self-government set in Article 31 of the Draft Declaration. Given Australian Governmental policy, it is likely that it does not.

3.  ABORIGINAL COMMUNITIES ACT 1979 (WA)

3.1.  Background

The Aboriginal Communities Act arose out of work performed by Magistrate Terry Syddall in the 1970's.  Mr Syddall was concerned at the high number of Aboriginal people appearing before the courts and had also formed the view that the degree of understanding of Aboriginal people of the Court system was minimal.[22]

>From January 1971 he invited Aboriginal people to sit with him in court and advise him on relevant matters.  The purpose of this was to reduce apparent injustices by involving Aboriginal people in the administration of the court.[23] This proved to be an effective move and in 1977 Mr Syddall was commissioned by the Attorney-General to conduct research on Aboriginal people and the law. The focus of this was the development of greater understanding and harmony between Aborigines and non-Aborigines.

Out of this arose the Justice of the Peace scheme.  Mr Syddall suggested that Aboriginal Justices of the Peace be appointed from the elders of the communities, with young educated bench clerks being trained to do the reading and the writing for the Justices.[24] The scheme was to provide an alternative method of applying law and order in Aboriginal communities whilst enabling them to retain a separate traditional reality.  This was to be achieved through a community justice system based on the wider Australian Court model, incorporating Aboriginal personnel and in which sentences could limitedly embody Aboriginal concepts of punishment.[25]

After much consultation, Mr Syddall concluded that Aboriginal people wanted to make their own laws and appoint police aides to establish peace in their communities.  As such, he also recommended the appointment of rangers and probation officers to ensure the supervision of orders.[26]

Eventually, '[f]ollowing prolonged discussions with [Mr Syddall], the Attorney-General and his government colleagues concluded that legislation be passed to permit Aboriginal communities to make rules to apply within community lands'.[27] The framework in which this scheme was to operate was the Aboriginal Communities Act 1979.

So, it is clear that the Act was never intended to embody self-government. Its scope is narrow and it implements a foreign system in these communities.

3.2.  Contemporary Situation [28]

3.2.1.  Scope of the Act

The Act makes provision for independent and responsible management of judicial matters in Aboriginal communities which have been proclaimed pursuant to the Act. Under the Act, councils have the authority to make and enforce by-laws on community land.[29] A by-law can only be made by an absolute majority of all council members and only applies within community boundaries.  All persons are bound by the by-laws whether they belong to the community or not, or whether they are Aboriginal or non-Aboriginal.[30]

Under section 7(1) of the Act, specific by-laws can be made to cover the following areas:

*The regulation of admission of people and traffic. *Regulation for control of traffic. *Preventing damage to flora and fauna. *The use, safety and preservation of buildings. *Regulations governing noise, conduct and keeping the peace. *Restricting possession, use or supply of alcohol and other substances. *Regulation of the possession of and use of firearms or other weapons. * Regulation of litter and rubbish dumping. *Regulations for securing public order.

The Act, at its inception, applied to two Aboriginal communities.[31] Curre ntly, 29 Aboriginal communities in Western Australia have community by-laws under this Act.[32] Essentially, the Act can apply to any incorporated Aboriginal Community that the Governor, on the advice of the Minister, declares by proclamation to be a community to which the Act applies.[33] There is also a provision for the Governor by proclamation to declare that a Community is no longer covered by the Act.[34] So, the Governor has wide powers in relation to who may, or may not, be covered by the Act.  Further, section 8(3) states that '[i]f the Minister is satisfied that the by-laws are necessary and desirable he shall submit them to the Governor for his approval'.  Here also, the Government has the last say and the implication is that there is a suspicion that communities may not make just and sensible by-laws.

The preamble to the Act is expressed in broad terms, namely 'an Act to assist certain Aboriginal communities to manage and control their community lands and for related purposes'. The current scope of the Act, however, is limited by the provision for by-laws concerning a limited set of everyday matters and, further, only those relating to issues of law and order, or criminal justice administration on community lands.

That self-government applies to all areas of life is fundamental to the notion itself and is an important aspect of the Draft Declaration.[35] According to McCallum, '[g]iven the Act's current preamble, there is arguably enormous scope for the Act to empower Aboriginal communities in a variety of arenas other than the administration of limited criminal justice on community lands'.[36] The limited scope of the Act is critical to the determination that the Act does not meet the standard of self-government set by the Draft Declaration.

Further, even if the context of investigation is narrowed and an assessment is made as to whether the Act meets the standard of self-government solely in relation to criminal justice matters, it is clear that there are a number of issues which pose a serious impediment to the Act being a basis for self-government.  These issues are examined in the following section.

3.3.  Enforcement

3.3.1.  Sanctions

The Act presently only provides for fines, imprisonment and compensation as sanctions.  The current maximum fine available under by-laws is $100,[37] compensation to the community is available up to $250{38} and imprisonment up to a maximum of 3 months.[39] Fines are paid to the community Council for the use of the community. Other sentencing alternatives are also used, including good behaviour bonds, probation and community service orders.[40] It was originally contemplated that other sanctions of a community-based nature could be invoked through other mainstream legal methods such as by making them conditions to orders of probation.[41] The sanctions currently available do not really empower Aboriginal communities to adequately control the social environment of the community.

3.3.2.  Justices of the Peace

The Aboriginal Justice of the Peace scheme has developed serious difficulties.  This is mainly due to the fact that the cultural differences between Aboriginal and non-Aboriginal society have not been fully taken into account in the implementation of the scheme and conflict has been a result. Many Justices have indicated that it is very difficult to live among a people as one of them in one respect and as the dispenser of a foreign legal system in another.[42]

According to Hoddinott[43] Aboriginal JP's feel they are paying lip service to a system which limits their options when sanctioning.[44] As elders of their communities JP's have indicated they are losing credibility because they are associated with a legal system which cannot command respect.  This conflict is undermining the effectiveness of both Aboriginal and non-Aboriginal justice systems.[45]

Hoddinott[46] states that community courts seldom sit unless the Magistrate is in attendance.'Some justices have been involved with the justice of the peace scheme since 1980.  Many justices have indicated that they are dissatisfied with the degree of autonomy they have when the court is in session.  There is a lot of resentment and an increasing sense of impotency because they feel they are still advisers to the court'.[47]

There are also problems with Justices of the Peace imposing gaol sentences in view of the Royal Commission into Aboriginal Deaths in Custody recommendations about the abolition of Justices of the Peace.[48] The Commission recommended the phasing out of the use of Justices of the Peace in the Criminal Jurisdiction, yet the scheme under the Act fosters the use of Justices of the Peace to dispense justice and impose penalties (including imprisonment) within Aboriginal Communities.[49]

3.3.3.  Wardens

The original intention at the time of passage of the Act was for the enforcement of by-laws to be vested in the hands of wardens appointed from the communities. Wardens (or rangers) were to have 'enforced community rules, arrested offenders and prosecuted by-law breaches'.[50] This, however, was not pursued.  Section 7(2) of the Act empowers only members of the police force to enforce and take proceedings for breaches of the by-laws. Unfortunately, this does not address the reality that most Aboriginal communities simply do not have access to frequent Police support.  Police patrols to some communities are as infrequent as every eight to ten weeks. The level of Police support available is the greatest impediment to the enforcement of community by-laws.[51]

McCallum[52] states that 'overall, the community by-laws are not being enforced to their full potential and in some cases not at all'.  However, it must be stressed that this is not due to lack of interest or enthusiasm on the part of the communities.  According to King[53] 'The communities ... wish to appoint community members as wardens to assist the police in the enforcement of the by-laws, however, community members and councillors are not able to implement or enforce their by-laws adequately, as they lack the legislative power under the current terms of the Act to enforce by-laws.

Despite not coming within the scope of the Act, there have been instances of communities' appointing and utilising wardens.  According to Dodson [54] '[t]here is now a situation in at least one community whereby unofficial wardens are inflicting 'tribal' punishment for offences against the By-laws, and the offenders against the Act are seeking legal redress for assault.  These 'wardens' were allegedly armed with handcuffs, spears, batons and were 'overdoing' their job'.  The credibility of the community is undermined if attempts have been made to enforce by-laws independently of the police, only to be warned that their efforts are illegal and actionable.

The State being the only avenue for enforcing the by-laws is the antithesis of self-government.  The whole issue of the status and the role of wardens remains totally unresolved.

3.4.  Customary Law

The Act never purported to be a recognition of Traditional law. Structurally, it was from the beginning an extension into local communities of the general court system, with certain adjustments and with the addition of local personnel.  Yet Customary law remains a significant force in many Aboriginal communities.[55]

The conflict in value systems is compounded when Aboriginal justices are torn between the two laws, tribal law and the Aboriginal Communities Act ...  [T]here are problems deciding which offence is applicable to which law ...  Tribal laws are either being ignored or undermined by an alien value system.  Further, Aboriginal justices feel they are becoming powerless both within their own law, and within the framework of the Aboriginal Communities Act.[56]

The Act contains no reference to Customary law as a matter which may be prescribed under by-laws nor to the application of Customary law to the punishment of offences under General law.[57] In this sense, the Act may be viewed as assimilationist in its underlying philosophy in that it transplants into Aboriginal communities thevalues and authority system of Australian law.

A further problem, relating to Traditional law, is that the Act, by imposing, non-Aboriginal structures upon these communities fails to take into account problems associated with kinship structures.  Certain responsibilities to family members may positively or negatively affect determinations of punishment under by-laws depending on which kin group the Justice of the Peace belongs to.

The failure to recognise the degree of commitment which tribal Aborigines have to their Law has been a principal flaw in the working of the Act. Provision for Aborigines to practice their own Customary law should have been incorporated.[58] Inherent in the notion of self-government is the freedom for Aboriginal people to identify and define the most appropriate legal regime for their communities, whatever that may be.

3.5.  Community Perceptions

Perceptions of the utility of the Act are mixed.  It allows communities, albeit limitedly, to make their own rules regarding the conduct of affairs within the community and enables enforcement of those by-laws to take place within the community structures.[59]

It is also true to say that there continues to be considerable interest in the Act by most communities.  Yu[60] states that communities under the Act are 'wholeheartedly in favour of the maintenance of the community justice system' and further that '[t]he communities currently operating under the Act see the Community Justice System as being intrinsically part of the development of community consciousness and responsibility in matters relating to justice and harmony within the community.  They believe this to be the basis for the successful operation and functioning of their community as a whole'.[61]

Aboriginal people wish to control crime and disorder within their communities and some clearly see By-laws as providing the forum in which to address this issue.[62] McCallum[63] states that 'the Act is seen to have enormous potential for achieving self-determination and self-management[64], particularly in relation to the administration of criminal justice on community lands'.

This situation may be a result of the fact that Aboriginal people are fully aware that, being dominant, non-Aboriginal cultural values will necessarily impinge of their lives.  In the face of this, the wish may be to retain as much control as possible over their social environment.

Fundamental to the current operation and enforcement of the Community Justice Programme is the issue of general community understanding of the contents, meaning and significance of the by-laws. McCallum [65] states that it was evident that many community members lacked any real understanding of the by-laws. Similarly, according to Unkovich, 'no Community has thus-far ever fully comprehended how the scheme is meant to work and what the ramifications are for their people'.[66]

The Act is not based on Traditional law and social structures, the relevant by-laws are conceptualised and framed in English using technical legal terminology and legal proceeding take place in English.  As such, it is seen to be remote from Aboriginal reality.  Hoddinott[67] maintains that 'Aborigines are being pressured into a conflict situation when they are expected to dispense a foreign law in a foreign language'.

4.  DISCUSSION

The Act is very much an imposition of Western legal ideologies and practices upon Aboriginal communities.  It is not really an expression of Aboriginal people's inherent right to self-government as a specific form their right to self-determination as detailed by the Draft Declaration.

By-law powers are really only one aspect of local autonomy.  It is possible for this type of scheme to be broad in scope.  However, in Western Australia under the Act, by-law making power is strictly circumscribed. True local autonomy or self-government involves a much broader range of issues than is currently provided for under the Act. Further, if Aboriginal communities are granted true self-government the decision as to what laws would apply within the community would be determined by the community.[68]

Having European law administered to Aboriginal people by Aboriginal people is an improvement on having it administered by non-Aboriginal people.  It is, however, in no way self-government.  This type of arrangement perpetuates an assimilationist ideology.  The argument may be raised that it is not forced as the communities concerned have a choice whether or not to participate. However, until there is a range of options available for Aboriginal communities to decide how best to manage their own social environment, this choice, and consequently the notion of self-government, remains illusory.

Interestingly, at around the same time as the Act was implemented, Tatz[69] wrote,

"[s]ocial history demonstrated one feature ... that white society unilaterally defines the problems, prescribes the policy dicta, enacts the legislation, creates the administrative machinery and determines the nature, content, personnel and flavour of remedial programmes."

This is true of the Aboriginal Communities Act.  If self-government is to be experienced as a right, non-Aboriginal people and governments need to understand and concede that a major avenue for Aboriginal people's survival and progress is their rejection of the values of non-Aboriginal society and the programmes it mounts for their benefit.  To achieve this, I believe that it is necessary to cede power, authority, responsibility and accountability to Aboriginal communities.

As Dodson [70] states,

"it could be said [that the Act] has never been taken seriously.  Apart from some individual Magistrates, no-one has seriously acknowledged, enhanced or sponsored the legitimate right of Aboriginal people to develop self-management legal process programmes for their own communities. Arguably, increasing numbers of communities being drawn into the Aboriginal Communities Act are still suffering the same problem."

In the next section I examine proposals for amending the legislation to overcome these problems.

5.  FUTURE PROPOSALS

Since its inception in 1979, the Act has not been amended despite several reports recommending comprehensive changes between 1982 and 1992.[71] Many of the recommendations for legislative change in these reports are the same.

Suggested amendments to the Act which have been identified as necessary to improve the scheme are as follows:[72]

*Give proper powers to community wardens.[73]

This requires amending the Act to provide for: the appointment of wardens by communities, defining the scope of their powers and their immunities.

Hedges recommends that the Act be extended to empower communities to appoint wardens who should be authorised to search premises, vehicles and personal belongings, to confiscate prohibited goods and to prosecute offenders.[74]

It has been proposed [75] that powers of wardens should include: the imposition of on-the-spot fines, the impounding of vehicles, the confiscation of alcohol and weapons, powers to search premises, vehicles or personal belongings and overnight detention for adult offenders.

*Provide a wider range of options to deal with people who break the by-laws.[76]

This includes increasing fines as a more effective deterrent, introducing community-based sanctions, implementing mediation procedures and extending the sanction options to include aspects of customary law.[77]

*Give power to communities to make by-laws on a wider range of issues (such as health and town planning).'[78]

*Appoint Administrators so that legal formalities do not restrict implementation of the Act.[79]

It was envisaged that the Administrator could: co-ordinate consultations; co-ordinate introduction of legislation; minimise delays; monitor effectiveness and co-ordinate development of programmes.[80]

*Implementation of educational programmes for Justices of the Peace, other officers of the court and members of the communities generally.[81]

Programmes for court officers should include the scope of the by-laws and the processes of the court.  Programmes for the community should include explanation of the content, meaning, operation and significance of by-laws. Further, the language of by-laws should be simplified or translated into the appropriate Aboriginal language.[82]

Proposed amendments to the Act are to be welcomed if they give more control to Aboriginal communities.  I believe, however, that the fundamental premise of the Act, that of the imposition of the wider Australian legal system, is antithesis to the notion of self-government espoused in the Draft Declaration. The paradigm of the Act remains, and would remain, assimilationist.  If certain communities feel that the Act embodies the scheme most suitable to their community then they should be free to seek proclamation.  However, if self-government as stated by the Draft Declaration is what is sought, mere cosmetic amendments to the Act will not achieve this.

With amendments, the Act may become an aspect of self-government. For true self-government, however, the Act would need to be substantially changed or another system, much broader in scope and divulging more power to Aboriginal people would need to be enacted. Self-government implies a real choice about the kind of system to be operating in these communities, not the choice between the scheme under the Aboriginal Communities Act or the current wider legal system.

In view of this, I believe that the amendments proposed by Hoddinott would best meet the standard set by the Draft Declaration.  Hoddinott[83] provides two alternative options for amending the Act:

1) Amend the Aboriginal Communities Act to encourage the use of tribal Law. The Aboriginal Communities Act should make the use of tribal Law the norm with the JP Scheme as an optional avenue of arbitration.

Within this framework Aboriginal JP's should have the option of using either tribal sanctions or those prescribed by the Act.

If the first option is considered too radical it is suggested that;

2) The Aboriginal Communities Act be rewritten to include provision for tribal Law and, allow the operation of the Act to follow traditional arbitration methods with greater autonomy for Aboriginal JP's.

Given the content of Article 31 of the Draft Declaration, option one is to be preferred.[84] If this fundamental change does not occur, the Act will remain tangential to the underlying question of autonomy.

6.  CONCLUSION

The By-laws Scheme relies upon the support of the Aboriginal communities for its effectiveness.  Nevertheless it is an imposed system with ultimate governmental control.  It is, in its current form, a welfare measure directed at Aboriginal people.  Although its intention is honourable, it is still a decision by the Western Australian government about Aboriginal people.  While it is clear that Aboriginal people are welcoming the application of the Act to their communities, it could be said to be a case of taking the only available option for some form of control in certain aspects of community life.  If the Act is to meet the standard of self-government set by Article 31 of the Draft Declaration, many changes are needed.  The Act has a relatively long history, has been applied to many Aboriginal communities, and is welcomed by them. As such I believe that the most constructive option would be initially to build upon the foundations already laid and amend the Act along the lines suggested by Hoddinott.  For control that is more than token self-government, however, a power shift and an ideological change is needed in this State.

This is a concept that is frightening to the wider Australian population and to Governments.  Until that day arrives, however, Australia cannot be said to be fulfilling its international human rights obligations with respect to Aboriginal Australians.

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Fleras, A. and J.L. Elliot, The Nations Within: Aboriginal-State Relations in Canada, the United States and New Zealand, Oxford University Press, Toronto, 1992.

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Hoddinott, A. That's 'Gardia' Business:  An evaluation of the Aboriginal Justice of the Peace Scheme in Western Australia, 1985.

Hoddinott, A. 'Aboriginal Justices of the Peace and 'Public Law'', In K. Hazlehurst (ed), Justice Programs for Aboriginal and Other Indigenous Communities:  Aboriginal Criminal Justice Workshop No. 1, Seminar Proceedings No. 7, Australian Institute of Criminology, Canberra, May 1985, pp. 173-186.

Huntsman, C. 'Experiencing the United Nations: A Perspective From an Indigenous Peoples' Organisation.  Aboriginal Law Bulletin, vol. 2, no. 4, October, 1989, pp. 7-8,14.

International Covenant on Civil and Political Rights 999 UNTS 171, 6 ILM 368 (1967).

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NOTES

[1] The term 'indigenous peoples' has been defined as; 'indigenous communities, peoples and nations ... which have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them.  They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems (J. Martinez Cobo, 'Study of the Problem of Discrimination Against Indigenous People' Arizona Journal of Comparative and International Law, vol. 8, no. 2, Fall 1991.  Rpt. in L364:  Aboriginal Legal Rights: Reader.  Murdoch University, Murdoch, 1994, p. 35.)

[2] Draft Declaration on the Rights of Indigenous Peoples, Report of the UN Working Group on Indigenous Peoples on its Eleventh Session, UN Doc. no. E/CN.4/ Sub. 2/ 1993/29.

[3] R. Barsh, 'An Advocate's Guide to the Convention on Indigenous and Tribal Peoples'.  Oklahoma City University Law Review, vol. 15, 1990. Rpt. in L 364: Aboriginal Legal Rights: Reader.  Murdoch university, Murdoch, 1993, p. 411.

[4] R. Barsh, ibid, p. 412.

[5] Supra note 1, p. 24.

[6] This was originally named the Working Group on Indigenous Populations. It was renamed the Working Group on Indigenous Peoples in 1988 because the term 'peoples' is linked with the right of self-determination, while the term 'populations' is more detached from this right (E. Daes, 'On the Relations Between Indigenous Peoples and States'. In Without Prejudice: The EAFORD International Review of Racial Discrimination, International Organisation for the Elimination of All Forms of Racial Discrimination, vol. 2, no. 2, 1990, p. 43.)

[7] D. Sanders, 'The UN Working Group on Indigenous Populations'.  Human Rights Quarterly, vol. 11, 1989, p. 407.

[8] D. Sanders, ibid, p. 407.

[9] C. Huntsman, 'Experiencing the United Nations: A Perspective From an Indigenous Peoples' Organisation.  Aboriginal Law Bulletin, vol. 2, no. 4, October 1989, p. 7.

[10] C. Iorns, 'The Draft Declaration on the Rights of Indigenous Peoples'.  Aboriginal Law Bulletin, vol. 3, no. 64, October 1993, p. 4.

[11] It is important to note that there was concern expressed by indigenous peoples that this special emphasis was an attempt to limit the general right of self-determination (expressed in Article 3) to self-government, thus excluding any form of external self-determination. Iorns (ibid, p. 4), states, however, that '[t]he position of the WGIP is that the grammar makes it clear that it is not meant to be a limitation of the right of self-determination ... [rather], self-government is only one option or form of the exercise of the right of self-determination'.

[12] M. Dodson, Aboriginal and Torres Strait Islander Social Justice Commission, First Report, Australian Government Publishing Service, Canberra, 1993, p. 9.

[13] To be binding on Australia the Draft Declaration must follow an arduous and lengthy path.  It must be approved by the General Assembly, established as a Convention, ratified by the Australian Government and finally be implemented as domestic legislation.  For a discussion of how international law becomes Australian law see Department of Foreign Affairs and Trade.  Human Rights Manual, Australian Government Publishing Service, Canberra, 1993, pp. 31-34.

[14] T. Rowse, Remote Possibilities:  The Aboriginal Domain and the Administrative Imagination, North Australia Research Unit, Australian National University, Canberra, 1992, p. 2.

[15] P. Jull, The Future of Federalism and Indigenous Peoples in Australia and Canada, Unpublished manuscript, Northern Australian Research Unit, Darwin, 1990, p. 16.

[16] A. Fleras and J.L. Elliot, The Nations Within: Aboriginal-State Relations in Canada, the United States and New Zealand, Oxford University Press, Toronto, 1992, p. 5.

[17] R. Barsh, 'Aboriginal rights, Human rights, and international law'. Australian Aboriginal Studies, No 2, 1984, p. 3.

[18] G. Nettheim, ' "The Consent of the Natives": Mabo and Indigenous Political Rights'.  Sydney Law Review, vol. 15, no. 2, June 1993, p. 232.

[19] 999 UNTS 171, 6 ILM 368 (1967).

[20] Supra note 12, p. 42.

[21] There are many issues surrounding the debate on self-determination, they are complex and beyond the scope of this essay.

[22] T. Syddall, 'Aboriginals and the Courts I and II'.  In K. Hazlehurst (ed), Justice Programs for Aboriginal and Other Indigenous Communities: Aboriginal Criminal Justice Workshop No. 1, Seminar Proceedings, No. 7, Australian Institute of Criminology, Canberra, May 1985, p. 158.

[23] T. Syddall, ibid, p. 160-161.

[24] T. Syddall, supra note 22, p. 163.

[25] J. Hedges, Community Justices Systems and Alcohol Control: Recommendations Relating to the Aboriginal Communities Act and Dry Area Legislation in Western Australia, A Report for the Minister with Special Responsibility for Aboriginal Affairs, March 1986, p. 2.

[26] T. Syddall, supra note 22, p. 169.  The recommendation regarding rangers, however, was not included in the legislation.

[27] T. Syddall, supra note 22, p. 165-168.

[28] Although the by-laws operate somewhat differently in each community, the issues that I discuss apply to all communities.

[29] Section 6(1) of the Act defines community lands as '... the lands declared by the Governor by proclamation to be the community lands of that community'.  For some communities defined community lands extend only to the administration and residential areas.  This is not a very satisfactory situation and would narrow the scope and effectiveness of the by-laws considerably.

[30] A. Hoddinott, 'Aboriginal Justices of the Peace and 'Public Law'', In K. Hazlehurst (ed), Justice Programs for Aboriginal and Other Indigenous Communities:  Aboriginal Criminal Justice Workshop No. 1, Seminar Proceedings No. 7, Australian Institute of Criminology, Canberra, May 1985, p. 175.  Community by-laws, though, do not have the authority to override other statutory provisions, such as, the Police Act and the Criminal Code (P. Dodson, Royal Commission into Aboriginal Deaths in Custody:  Regional Report of Inquiry into Underlying Issues in Western Australia, vol. 1, Australian Government Publishing Service, Canberra, 1991, p. 456).

[31] These were the Bidyadanga Aboriginal Community - La Grange Incorporated and the Bardi Aborigines Association Incorporated (section 4(1)(a)).

[32] 'Communities Act:  The way to go', Newsletter of the Aboriginal Affairs Planning Authority, Aboriginal Affairs Planning Authority, Perth, February 1994, p. 1.

[33] Section 4(1)(b).  There are often long delays for a community wishing to be proclaimed under the Act.  Sometimes a community's application for proclamation can take up to two or even three years to be completed.  The procedure where by Aboriginal Communities are proclaimed remains unwieldy and promotes delays (P. Dodson, supra note 30, p. 465).

[34] Section 5(1).

[35] For example, it is important that Aboriginal communities have control over issues regarding inter alia health, housing, education and social welfare.  Perhaps of greatest importance, issues of self-government are necessarily tied to the issue of land tenure or land rights.  Without this, true self-government cannot be realised.

[36] A. McCallum, 'Review of the Aboriginal Communities Act 1979 (WA)', A Final Report to the Aboriginal Affairs Planning Authority on the Review of the Aboriginal Communities Act 1979 as it Applies in the Kimberley Region of Western Australia, vol. 1, 1992, p. 97.

[37] Section 7(2)(d).

[38] Section 7(2)(e).

[39] Section 7(2)(d).

[40] M. King. 'Aboriginal Communities Act: By-laws or Bygone?', A Paper presented to the Aboriginal Legal Service of WA Inc.  Solicitors' Conference, Perth, December 1989, p. 6.

[41] 'Aboriginal Communities Act (1979) Interdepartmental Task Force: Proposals for Implementation of Recommendations Arising from Reviews'. Aboriginal Affairs Planning Authority, June 1993, p. 2.

[42] A. Hoddinott, supra note 30, p. 176-177.

[43] A. Hoddinott, That's 'Gardia' Business:  An evaluation of the Aboriginal Justice of the Peace Scheme in Western Australia, 1985, p. 36.

[44] Aboriginal Justices of the Peace are appointed pursuant to the Justices Act 1902. 'As such, their jurisdiction extends beyond hearing prosecutions made pursuant to the Aboriginal Communities Act. Theoretically, they are therefore not limited to imposing the penalties as prescribed in the Aboriginal Communities Act.  However, in practice, the Justices who have been appointed in the communities have acted only in relation to breaches of by-laws and have penalised convicted "offenders" in terms of the Act's prescribed penalties' (McCallum, supra note 36, p. 11).

[45] A. Hoddinott, supra note, 43, p. 1.

[46] A. Hoddinott, supra note 43, p. 34.

[47] A, Hoddinott, supra note 30, p. 177.

[48] P. Dodson, supra note 30, p. 470.

[49] J. Unkovich, Aboriginal Community Justice - Unresolved Issues in the Operation of the Community Justice Scheme in the Kimberleys, Aboriginal Legal Service of Western Australia Inc., 1993, p. 9-10.

[50] J. Hedges, supra note 25, p. 52.

[51] McCallum, supra note 36, p. 9-10.

[52] Supra note 36, p. 7.

[53] M. King, supra note 40, p.8.

[54] P. Dodson, supra note 30, p. 461.

[55] J. Unkovich, supra note 49, p. 6.

[56] A. Hoddinott, supra note 30, p. 176-177.

[57] Item 17 of the community by-laws, however, does make a limited provision for customary law.  It states that 'it is a defence to a complaint of an offence against these by-laws to show that a defendant was acting under and excused by any custom of the community'. This clause appears in all by-laws except the Ngaanyatjarra Council by-laws (P. Dodson, supra note 30, p. 458).

[58] A. Hoddinott, supra note 43, p. 29. It must be noted that this is not a simple proposition.  Customary law is a nebulous and far reaching concept.  Determinations about Aboriginal Customary law by non-Aboriginal people must be made extremely carefully.

[59] M. King, supra note 40, p. 10.

[60] P. Yu, Report on Consultation with Communities in Response to The Hedges Report, prepared on behalf of the Mamabulanjin Resource Centre, Broome WA, July 1987, p. 16.

[61] P. Yu, ibid, p. 20.

[62] P. Dodson, supra note 30, p. 471.  It should be noted that, according to McCallum (supra note 36, p. 17) that 'alcohol abuse is still unarguably the greatest cause of community unrest and division.  It is the major reason for communities seeking to come under the terms of the Act and being empowered to enact by-laws in the first place'.

[63] Supra note 36, p. 2.

[64] Self-management refers to efficient administration, while self-determination implies control over policy and decision making. Little difference, however, can be seen in the implementation of these policies in Australia (T. Rowse, supra note 14, p. 91).

[65] A.Mc Callum, supra note 36, p. 27.

[66] J. Unkovich, supra note 49, p. 6.

[67] A. Hoddinott, supra note 43, p. 27.

[68] Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Australian Government Publishing Service, Canberra, vol. 1, 1986, p. 76.

[69] C. Tatz, 'Aborigines: political options and strategies.  In R.M. Berndt (ed), Aborigines and Change:  Australia in the '70s, Australian Institute of Aboriginal Studies, Canberra, 1977, p. 384.

[70] P. Dodson, supra note 30, p. 460-461.

[71] A. Hoddinott, supra note 43; J. Hedges, supra note 25;  A. McCallum, supra note 36.

[72] Unkovich (supra note 49, p. 6) maintains that 'it was only after the completion of the Macallum (sic) Report in 1992 that Government ... announced proposed legislative changes to the Act.  Where those changes are now is anybody's guess'.

[73] J. Hedges, supra note 25, p. 52; A. McCallum, supra note 36, p. 69.

[74] Supra note 25, p. 53.

[75] Aboriginal Communities Act (1979) Interdepartmental Task Force, supra note 41, p. 4.

[76] J. Hedges, supra note 25, p. 55-57; A. McCallum, supra note 36, p. 72.

[77] A. Hoddinott, supra note 43, p. 39 ; J. Hedges, supra note 25, p. 47.

[78] 'By-laws - What is Happening?', Newsletter of the Aboriginal Affairs Planning Authority, Aboriginal Affairs Planning Authority, Perth, February 1994, p. 3.

[79] J. Hedges, supra note 25, p. 59.

[80] J. Hedges, supra note 25, p. 59.  Once again, however, this is power vested in someone other than the community concerned.

[81] A. Hoddinott, supra note 43, p. 39; J. Hedges, supra note 25, p. 48; A. McCallum, supra note 36, p. 71, 75.

[82] A. McCallum, supra note 36, p. 75.

[83] A. Hoddinott, supra note 43, p. 39.

[84] For an extensive examination of the relationship between Aboriginal Customary law and the wider Australian legal system see Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, vols. 1 and 2, Australian Government Publishing Service, Canberra, 1986.