6. The Recognition of Aboriginal Customary Laws and Traditions Today
69. Introduction. As Chapter 5 concludes, the common law does not provide an appropriate general basis for the incorporation or recognition of Aboriginal customary laws, or at least it has not done so so far. While the common law rules for the recognition of custom, of communal native title, or of local laws and institutions in territories acquired by the Crown may provide some scope for recognition, there is yet no basis in Australian case law for such developments and no good reason to predict that they will occur. Even if such developments were to occur they would not, given the many changes in the lives of Aborigines affected, be of general application, nor would they resolve many of the problems which now have to be faced in recognising Aboriginal customary laws and traditions. But there are other ways in which Aboriginal customary laws can be said to be ‘recognised’, as an examination of the ways in which Australian courts, administrators and legislators have responded to Aboriginal customary laws will show. It may be that in an unsystematic, indirect way Australian law does now sufficiently allow for the recognition of Aboriginal customary laws and traditions, so that no new or more systematic form of recognition, and in particular no special legislation for recognition is required. As was noted earlier, the general direction of Aboriginal affairs policy began to change in the late 1960s and early 1970s, and the increased interest in these questions which again came to be expressed has been accompanied, at least in particular contexts and in a piecemeal way, by measures to accommodate Aboriginal traditions and practices. This Chapter summarises briefly the various ways in which Australian law can now be said to recognise Aboriginal customary laws and traditions.