18.08.2010
802. The Overseas Experience. This survey has only discussed the experience with ‘indigenous justice mechanisms’ in a limited number of countries and in limited detail. The discussion has to some extent focussed on the shortcomings and difficulties confronting these courts and other bodies. However, the level of acceptance by the indigenous people subject to them is a crucial consideration in assessing their validity and success. Nonetheless, from the material presented here and other material available to the Commission, a number of things are clear:
the diversity of experience in different countries, each dependent to a very large degree on its own experience and history;
the difficulty of classifying many of the ‘justice mechanisms’ as ‘traditional’ or indigenous, given that many operate as an extension of the criminal justice system;
the difficulty, in particular, of limiting ‘justice mechanisms’ to problems which can be regarded as ‘traditional’;
the frequent difficulties encountered (especially in the United States) with jurisdictional and due process requirements;
the tendency of tribal courts to become more legalistic over time, often as a response to the way the general legal system operates;
the relatively trivial or limited range of matters dealt with, especially in the criminal law field; and
the continual encroachments and pressures on the laws, customs, practices and traditions of indigenous people, even in countries where they are in the majority.
Of the various overseas systems studied it could be argued that the idea of the village courts in Papua New Guinea has the greatest potential application for Aboriginal communities. The emphasis in village courts is on resolving disputes rather than as a criminal court, although they have a limited criminal jurisdiction. The courts rely on local custom rather than a written code, are locally administered and readily available to the people. They are not a substitute for the general courts but operate in conjunction with them. They do not create the jurisdictional problems that have arisen in the United States with Indian tribal courts. Furthermore, and perhaps most importantly, they are accepted by the people as ‘their’ court. The overseas experience confirms that it is rarely if ever possible to establish an official code or legal structure which accurately reflects the dispute resolution mechanisms operating within indigenous communities. Indeed, this has proved to be the case even of the village courts:
[Some] observers see the [Village Courts] Act as a bridge between custom and customary law and modern justice. Others in contrast, have emphasised the way the Act has set up new institutions and officials and uses non-traditional mechanisms and adjudication for settlement of disputes … In our view the second approach, that the Act establishes a new system of formal courts in villages, better reflects the Act as a whole, while the glowing prose on mediation … describes one aspect of the total operations envisaged for the courts.[1230]
Local courts for indigenous people can work, as the Papua New Guinea experience has shown. That they are not traditional institutions, and that they tend to become more formal over time are not fatal objections. But there are important differences between institutions established by and for an indigenous majority, as with the Village Courts, and institutions established, modified or extended for a small indigenous minority (as is the case with the Aboriginal courts and similar bodies so far tried in Australia). Even where these come to be accepted by the indigenous groups in question, their inherent tendency — in some cases their express intention — is to expand still further the operation of the general criminal justice system, with whatever modifications, into the lives of those concerned. This is also true of all the Australian examples of Aboriginal courts discussed in Chapter 29. In addition, specific features of Aboriginal social structures, with their diffusion of authority and their strong basis in kinship, present real difficulties in setting up courts which vest power in specified persons in all cases. For these and other reasons, the establishment of local justice mechanisms for Aboriginal communities presents distinct and difficult issues, which no transplantation of overseas experience can resolve.[1231] These problems, and possible solutions to them, are discussed in the next chapter.