809. Forms of Local Autonomy. The point has already been made that one method, arguably the most direct and fundamental one, of dealing with local law and order matters is through the conferral on Aboriginal communities of powers of local self-government, allowing those affected to decide for themselves what (if any) changes are needed. There is an analogy with ordinary powers of local government. But given the remoteness of many Aboriginal groups, their special characteristics and the special problems facing them, and the principle of Aboriginal self-management or self-determination, there is no reason why powers should be confined to the existing range of local government matters. Exactly what those powers should be would be a matter for negotiation with the appropriate authorities. Framework legislation would be needed to allow for the exercise of a wide range of powers, pursuant to agreement with the community concerned. Proposals for Indian self-government along these lines have reached a relatively advanced stage in Canada; in Australia, the Northern Territory Community Government Scheme is a smaller-scale version of this idea.
810. Local Autonomy and the Commission’s Terms of Reference. There are difficulties in dealing with proposals of self-government or local autonomy in the context of a Reference on the recognition of Aboriginal customary laws Local autonomy or self-government involves a much broader range of issues. In one sense, if Aboriginal communities are granted local autonomy or a form of self-government the issue of recognising Aboriginal customary law does not arise. The decision as to what laws would apply within the community would be determined by the community. Aboriginal communities may well wish to devise new rules or approaches to cope with their problems: there is no reason why this should be confined to applying ‘customary’ or ‘traditional’ law. In the words of Dr Daniel Craig:
Regarding legal reform, therefore, the real issue is not recognition of customary law. Rather, it is whether or not Aboriginal communities should be given political and economic control of their own reserves. An answer to this question of local control will solve many of the problems regarding the place of customary law in both traditional and non-traditional reserves.
In Australia, ‘Aboriginal affairs’ has usually been seen not as raising questions of self-government or local autonomy but as involving a series of more-or-less distinct ‘problems’ of Aboriginal ‘welfare’, of appropriate ‘services’ to be provided, of ‘programs’ for Aboriginal advancement. The way the present Reference was formulated is very much an illustration of the latter approach. To doubt the adequacy of this approach is not to deny the need for services or programs adapted to the special needs of Aborigines (as of others in need). A case for the recognition of Aboriginal customary laws can also be made on its merits, as this Report seeks to do. But even when particular programs or services can be seen as an aspect of Aboriginal self-management or as a recognition of Aboriginal traditions or customary laws, they are inherently partial and tangential to the underlying question of autonomy. For present purposes, it is necessary not to confuse particular proposals for local justice mechanisms — including proposals from Aboriginal communities themselves — with these broader questions of self-government. By-law and similar powers are considered in this Part in the context of proposals for local justice mechanisms within Aboriginal communities, rather than in the wider, and more significant, context identified here.
811. By-Law Powers. Another way in which Aboriginal communities may exercise control over law and order is by having the power to make local by-laws. In a sense this power is an aspect of local autonomy. Its scope however may be broad or narrow. By laws could be enforceable in a local Aboriginal court, or other form of local justice mechanism, or they could be enforced in the magistrates courts in the usual way (as with the Northern Territory Community Government Scheme). The Aboriginal courts in Queensland and the Aboriginal Communities Act Scheme in Western Australia are examples of the former, although in both States the by-law making power is strictly circumscribed. Providing Aboriginal communities with by-law making powers gives them the opportunity to pass laws which they see as relevant and necessary. These may include aspects of their customary laws. Some communities have requested such powers (e.g. Angurugu), but do not want the additional responsibilities of running a court to enforce such bylaws. However if by-laws were passed which included aspects of Aboriginal customary laws to be enforced in magistrates courts, procedures would need to be set up to ensure the views of local Aboriginal communities were made known to the courts.