The Definition of Aboriginal Customary Laws

98. A Composite Phrase. The phrase ‘recognition of customary laws’ is a highly ambiguous one. This is true both of the term ‘recognition’ and, more obviously, of the term ‘Aboriginal customary laws’. With the composite phrase, ‘recognition of Aboriginal customary laws’, the ambiguities are multiplied. There are different ways in which a law or system of laws or values might be ‘recognised’.[45] At a basic level, to say that Australian law should ‘recognise’ Aboriginal customary laws is to say that it should acknowledge their reality and existence, that it should take account of them as a phenomenon.[46] This sense of ‘recognition’, though not a specifically legal one, is primary: without this level of ‘recognition’, which implies at least some understanding or comprehension, questions of legal recognition cannot arise. The early Australian experience demonstrates this clearly. Despite the willingness of particular administrators or judges to take account of Aboriginal traditions and customary laws, the prevailing attitude was one of total non-recognition, accompanied in most cases by blank incomprehension.[47] In the changed circumstances of today, the question at this primary level must be: what it is that is being recognized, and what are the implications of that recognition? These questions are not confined to recognition of Aboriginal customary laws. According to a recent study of the ‘law and custom’ of the Tswana, what is identified as customary law may be ‘a loosely constructed repertoire rather than an internally consistent code’.[48] This was written of a society with an elaborate and much studied body of rules, and with developed formal institutions for resolving disputes. Aboriginal societies are, in a number of respects, very different: is it possible to say that they have a body of laws in any accepted sense?

99. Characteristics of Aboriginal Customary Laws. There are, as we have seen, no systematic accounts of ‘Aboriginal customary laws’ as such. There are no manuals or handbooks similar to those found in other countries, in particular in Africa. There is no code of customary law such as the Natal Code of Native Law. But there is a large body of material on Aboriginal traditions and ways of life, including detailed studies of kinship, religion, and family structures.[49] Whether this can be regarded as ‘Aboriginal customary law’ may be thought a rather arid definitional question, and it is one to which lawyers and anthropologists, in Australia and elsewhere, have tended to give different answers.[50] But it is necessary to distinguish clearly two separate questions: first, what are the shared norms, rules, values or institutions accepted by particular Aboriginal groups; second, whether some or all of that body of shared norms, rules, values or institutions can properly be regarded as ‘Aboriginal customary laws’. As to the former question there is substantial agreement in principle, although there is disagreement on some questions, and more is known about some groups than others.[51] For example, there have been disagreements, or at least differences in emphasis, among anthropologists as to the existence of persons with instituted authority to resolve disputes. Elkin and Hoebel emphasised the role of tribal elders or headmen.[52] Meggitt acknowledged the existence of explicit social rules among the Warlpiri, but in his view there did not appear to be any ‘group of elders’ who exercised power:

In short, the community had no recognised political leaders, no formal hierarchy of government. People’s behaviour in joint activities was initiated and guided largely by their own acknowledgment and acceptance of established norms.[53]

Hiatt said of the Gidjingali:

There was no institution to deal with such disputes, but there was a community of people with a set of common values and a system of formally defined rights and obligations.[54]

Although writers may disagree on particular issues, all agree that there existed, in traditional Aboriginal societies, a body of rules, values and traditions, more or less clearly defined, which were accepted as establishing standards or procedures to be followed and upheld.[55] Furthermore, these rules, values and traditions continue to exist, in various forms, today.[56]

100. Attempts at Definition. The classification of this body of rules, values and traditions as ‘law’ has, however, caused divisions of opinion, especially for lawyers in the positivist tradition of jurisprudence, and for anthropologists adopting definitions of ‘law’ from that tradition. The difficulty is greater because most systems of indigenous customary laws include customs or principles which may appear to observers to be more like rules of etiquette or religious beliefs, as well as other more obviously ‘legal’ rules and procedures Yet these may all be treated by their adherents as indistinguishably ‘law’. The point has been made about very different indigenous cultures and traditions. Comaroff and Roberts point out that:

The stated rules found in Tswana communities, known collectively as mekgwa le melao ya Setswana, constitute an undifferentiated repertoire, ranging from standards of polite behaviour to rules whose breach is taken extremely seriously ... [T]he norms that are relevant to the dispute-settlement process are never distinguished or segregated. Mekgwa le melao thus do not constitute a specialised corpus juris ...[57]

Similarly, Elizabeth Eggleston, writing of the Australian Aborigines, commented that:

Law and religion were intimately bound up in Aboriginal society ... and any attempt to identify certain segments of Aboriginal life as ‘legal’ involves the imposition of alien categories of thought on the tribal society. Some modern Aborigines have made comparisons between their law and the Australian legal system on the basis of common notions of rules and sanctions for their breach but they have also interpreted the word ‘law’ to mean ‘way of life’ and ‘religion’ ... This is not to deny that there was a system of ‘law’ in traditional Aboriginal society. I am using a functional definition of ‘law': one which places primary emphasis on law as a means of social control ... The use of the word ‘law’ to describe measures of social control in Aboriginal society is justified ... by the belief that every society must have means for settling disputes, and must have law in this sense, no matter how difficult it might be to identify binding rules or institutions corresponding to the legal system in our own society.[58]

It is significant that in Milirrpum v Nabalco Pty Ltd Justice Blackburn had no difficulty in treating the institutions and traditions of the Aboriginal plaintiffs as a system of law. It had been argued by the Solicitor-General that there must be a definable community, and also some recognised sovereignty giving the law a capacity to be enforced, before a system could be recognised as a system of law. Justice Blackburn disagreed:

Implicit in much of the Solicitor-General’s argument ... was ... an Austinian definition of law as the command of a sovereign. At any rate, he contended, there must be the outward forms of machinery for enforcement before a rule can be described as a law. He did not deny the deep religious sanctions which underlay the customs and practices of the aboriginals: indeed, he stressed them, and contended that such sanctions as there were religious ... The inadequacy of the Austinian analysis of the nature of law is well known ... The argument amounted to saying that in a system where people merely behave in certain predictable or patterned ways, apparently without the inclination to behave otherwise, and with no recognizable section of the community design ed for the repression of anti-social behaviour, or the application of compulsion to ensure adherence to the pattern, or the determination of disputes, there is no recognizable law. Where, it was asked, was there any indication of authority over all the clans, and where, beyond the influence of the elders, was the authority within each clan? Feuds were admitted to be common: did not this show that law was absent? None of these objections is in my opinion convincing ... The specialization of the functions performed by the officers of an advanced society is no proof that the same functions are not performed in primitive societies, though by less specially responsible officers. Law may be more effective in some fields to reduce conflict than in others, as evidently it is more effective among the plaintiff clans in the field of land relationships than in some other fields ... [T]he same is patently true of our system of law. Not every rule of law in an advanced society has its sanction.[59]

Increasingly there is agreement on the need to emphasise the procedural aspects of traditional or customary law systems, and to avoid assuming that the supposed characteristics of ‘advanced’ legal systems are necessarily shared by other systems,[60] or that institutions, procedures or rules which appear comparable have similar consequences or functions:

Aborigines may talk about [spears or other presents given in response to a ‘wrong'] as ‘fines’ (eg, as in the case at Oenpelli where someone other than one’s mother-in-law’s brother cuts one’s hair, and the latter then claims payment). It would be wrong to go from the use of the term ‘fine’ to argue that the principles underlying its use by Aborigines are closely analogous to those underlying its use by non-Aborigines. They are not.[61]

101. The Need for a Broad Approach. It is clear that narrow legalistic definitions of Aboriginal customary laws will misrepresent the reality. Distinctively Aboriginal customs and traditions continue to exist: it is these to which the Commission is directed by the Terms of Reference as ‘Aboriginal customary laws’. Their characteristics, and their importance for Aboriginal people, can be acknowledged and recognised without resorting to a precise definition, in the same way as Justice Blackburn in Milirrpum’s case rejected the confines of an all-purpose legal definition of customary law:

I do not believe that there is utility in attempting to provide a definition of law which will be valid for all purposes and answer all questions. If a definition of law must be produced, I prefer ‘a system of rules of conduct which is felt as obligatory upon them by the members of a definable group of people’ to ‘the command of a sovereign’, but I do not think that the solution to this problem is to be found in postulating a meaning for the word ‘law’. I prefer a more pragmatic approach ... What is shown by the evidence is, in my opinion, that the system of law was recognized as obligatory upon them by the members of a community which, in principle, is definable, in that it is the community of aboriginals which made ritual and economic use of the subject land. In my opinion it does not matter that the precise edges, as it were, of this community were left in a penumbra of partial obscurity.[62]

Exactly how Aboriginal customary laws are to be defined will depend on the form of recognition adopted: the various forms of recognition will be discussed in more detail in Chapter 11.[63] But it is clear that definitional questions should not be allowed to obscure the basic issues of remedies and recognition. It will usually be sufficient to identify Aboriginal customary laws in general terms, where these are recognised for particular purposes. This has been the practice both in Australia and elsewhere,[64] and it has not led to special difficulties of application. In some contexts (eg customary law ‘offences’ under by-laws) more specific provisions may be necessary, but these issues only arise in those contexts, and only once it is determined that recognition is, in principle, desirable.[65]

[45]The Shorter Oxford English Dictionary lists six meanings of ‘recognition’, none specifically legal in the present sense.

[46]As the reference implies ‘... Aboriginal customary law exists and this fact must be kept squarely in mind in coming to terms with it. Recognising and dealing with the reality of customary law is the issue facing the Commission’: C McDonald, Submission 161 (24 April 1980) 7.

[47]See para 23, 30.

[48]JL Comaroff & S Roberts, Rules and Processes, University of Chicago Press, Chicago, 1981, 18. cf AL Epstein, ‘The Reasonable Man Revisited’ (1973) 7 Law & Soc Rev 643, 653-5.

[49]See para 37.

[50]A Dickey, ‘The Mythical Introduction of "Law" to the Worora Aborigines’ (1976) 12 UWALRev 350, 350-1. For an analysis of the differing perspectives see K Maddock ‘Aboriginal Customary Law’ in P Hanks & B Keon-Cohen (ed) Aborigines and the Law, George Allen & Unwin, Sydney, 1984, 212, and cf W Twining, ‘Law and Anthropology. A Case Study in Interdisciplinary Collaboration’ (1973) 7 Law & Soc Rev 571.

[51]See para 37-8.

[52]AP Elkin, The Australian Aborigines, rev edn, Angus and Robertson, Sydney, 1979, 114; EA Hoebel, The Law of Primitive Man, Harvard UP, Cambridge, Massachusetts, 1954, 302.

[53]MJ Meggit, Desert People. A Study of the Walbiri Aborigines of Central Australia, Angus and Robertson, Melbourne, 1974, 250.

[54]LR Hiatt, Kinship and Conflict. A Study of an Aboriginal Community in Northern Arnhem Land, Australian National University Press, Canberra 1965, 146. For the view that these disagreements are more apparent than real see Maddock (1984) 227-30.

[55]Maddock (1984) 230-2.

[56]cf para 30, 34, 37, 38, 103, 223-31, 499-501, 695-720, 882-891.

[57]Comaroff and Roberts, 9-10. The phrase referred to could be loosely translated as ‘the law and custom of the Tswana’. See further para 37. For a different perspective see I Schapera, ‘Tswana Concepts of Custom and Law’ (1983) 27 JAL 141.

[58]Eggleston (1976) 278.

[59](1971) 17 FLR 141 266, 268.

[60]Comaroff & Roberts; AL Epstein, ‘The Reasonable Man Revisited’ (1973) 7 Law and Soc Rev 643; S Stoljar, ‘How can Feud-Law be Law Properly So-Called’ (1978) 13 UWAL Rev 262; J von Sturmer, Submission 383 (25 July 1983) 1, and for emphasis on ‘personal law’ in Aboriginal communities, id, 1-6.

[61]id, 6. And cf K Maddock, Submission 22 (31 October 1977) 21.

[62](1971) 17 FLR 141, 266, 267.

[63]See para 199-208.

[64]See para 70-82.

[65]See ch 19 for discussion of the question whether ‘customary law offences’ should be created.