18.08.2010
707. Background. The Yirrkala Community, consisting of a number of clan groups, is situated in North-east Arnhem Land (NT) and is a former mission of the Methodist Church. Yirrkala and it’s outstations have a population of approximately 700-800 Aborigines as well as non-Aboriginal support staff. Until the late 1960s it was an isolated community, but now the modern mining town of Nhulunbuy (pop 4000; established 1972) is within easy reach. Nhulunbuy contains the regional police station and court. Transport to other major centres by air is also readily available.
708. Dispute Resolution Process. A detailed study of dispute resolution mechanisms at Yirrkala was undertaken by Dr Nancy Williams, based on fieldwork in the late 1960s and early 1970s.[976] The study reveals that the Yirrkala people have a sophisticated and ritualised process of dispute resolution, based on the use of intra-and inter-clan moots.[977] The grievances of the disputants may, and in many cases would, have already been publicly announced or become widely known with such publication normally occurring in one of the following ways:
verbal declaration;
verbal declaration accompanied by some threat of physical injury;
assault;
Once a grievance becomes public in this way it has the status of a dispute and the procedures that need to be adopted to resolve it become important. According to Dr Williams there are 5 basic characteristics of the dispute settlement process at Yirrkala:
1. Intervention and subsequent management by a clansman with political authority who is senior to both the disputants;
2. Gathering and checking evidence by the intervening clansman;
3. Obtaining an admission of all culpable acts (the ‘true story’);
4. Confirmation of findings and of action taken by those with authority over and responsibility for the principals in the dispute.
An integral feature of this process is the moot, in which the disputants and interested parties are brought together so that the matter may be discussed. All or only some of the five characteristics of dispute resolution may occur within the moot, although it is likely that some preliminary work to gather information will have been done beforehand and that follow-up work will be required afterwards. The moot itself is an organised procedure, and as witnessed by Dr Williams, had four distinct phases:
Statements of the offence and relevant law by those with jurisdiction.
People address themselves to the specific allegations in the case under consideration. They may mention any other allegations they consider pertinent, and they judge the consequences of alleged acts.
Response to the allegations. The convener urges the defendant to admit the extent of his or her culpable acts. The defendant, who was the agent of the culpable act, responds.
Statements about the outcome, and the composition for the dispute may be made by a number of people but should include the convener, the offender, and the aggrieved person.[980]
Williams comments that:
… the relationship between modes of disputing and procedures of dispute settlement is clear … Brothers-in-law (sisters’ husbands) offered restraint as well as exhortation to settle the dispute, and subclan and clan leaders offered to manage the procedures of dispute settlement that would provide a satisfactory outcome.[981]
709. Kin Obligations. Disputes at Yirrkala covered a wide range of matters, including failure to fulfil obligations to kin,[982] domestic disputes, including disputes both as to existing and prospective marriages and other matters. While breaching contractual obligations is listed by Dr Williams as a primary cause of grievances or disputes, she notes that other causes of dispute were (1) the failure to recognise a person’s specific rights over certain women, land, natural resources or ritual objects, (2) breaches of religious restrictions, (3) the failure to carry out sanctions imposed during a previous dispute and (4) allegations of sorcery.[983] In her view, physical assault is not regarded as an offence in itself. Rather it is seen as related to some other underlying issue.
710. Sanctions. Sanctions imposed in the dispute resolution process have changed over time. There is now greater emphasis on non-physical sanctions although physical sanctions.[984] have not disappeared completely. The likelihood that persons handing out physical punishments may be dealt with under Northern Territory law appears to be at least one — if not the main — reason for this change. The sanctions more readily applied are temporary exile from the community, usually to outstations, restitution, usually by monetary compensation, and temporary removal from employment.
711. Role of the General Legal System. Aboriginal modes of dispute resolution at Yirrkala continue to be affected by the general legal system, and conflicts occur. However the local people, according to Dr Williams, had developed their own methods of attempting to resolve the jurisdictional issue. by distinguishing between those matters where they expected the general legal systems, to intervene, and those matters they considered they should deal with without such intervention. In this way the authority of the clan leaders within a defined jurisdiction is sought to be maintained. A distinction is drawn between ‘little trouble’, including ‘grievances that arise out of a breach of kin-defined rights or duties’,[985] and ‘big trouble’ which refers to situations involving ‘physical assault which resulted in serious injury or death and thereby made the act of assault highly visible’.[986]
The consistent conjunction of remarks about big trouble and Australian legal intervention [by Aborigines] indicated that the defining attributes of this category were derived from those acts which Yolngu had observed were most likely to be followed, if they were noticed, by intervention of white Australian authorities.[987]
Intervention by white authorities in other than ‘big trouble’ as defined was resented because it was regarded as an encroachment on Aboriginal jurisdiction. Generally, the police did not in fact intervene in purely Aboriginal disputes, thus reinforcing the Aboriginal view. The community did however, reserve the right to call in the police when they required their assistance, and this right was perceived by them as an adjunct to their own power.
712. The Current Situation. Since Dr Williams’ fieldwork was done, much has happened at Yirrkala. There are now 16 outstations where up to 250 Aborigines live at different times of the year. But there is still much debate and reflection on achieving better cooperation between what are perceived as two co-existing systems of law there. One result of this ongoing discussion is the so-called Yirrkala proposal, discussed in Chapter 31.[988] But the Commission has been told that the methods of resolution of disputes outlined by Dr Williams continue to operate along much the same lines,[989] although they may now involve smaller family groups rather than larger meetings or ‘moots’.