18.08.2010
1035. Balancing Considerations. Undeniably the questions discussed in this Report are not ones on which there is likely to be a consensus. Not only have widely divergent views been expressed, but there are divergent principles and requirements to be reconciled in making particular proposals:
One cannot but be conscious of the diversity of the views that have been expressed about the identification, extent and resolution of the problems involved in the mitigation of the effects which almost two centuries of alien settlement have had on the lives and culture of the Australian Aboriginals. Even among men and women of goodwill there is no obvious consensus about ultimate objectives. At most, there is a degree of consensus about some abstract generalised propositions: that, within limits, the Aboriginals are entitled to justice in respect of their homelands; that, within limits, those Aboriginals who wish to be assimilated within the ordinary community should be assisted in their pursuit of that wish; that, within limits, those Aboriginals who desire separately to pursue and develop their traditional culture and lifestyle upon their ancestral homelands should be encouraged, assisted and protected in that pursuit and development. It is in the identification and resolution of the problems involved in determining ‘the limits’ that consensus breaks down and that the greatest difficulties lie. The cause of the Aboriginal peoples will not be advanced if those difficulties are ignored. To the contrary, the difficulties will only. be exacerbated.[1994]
Inevitably the Commission has had to confront these difficulties, and to make its own assessment. In doing so, certain basic criteria have been adopted. Proposals for the recognition of Aboriginal customary laws should:
· be flexible enough to cope with change;
· interfere as little as possible in the way Aborigines choose to live their lives;
· allow maximum Aboriginal control over their customary laws;
· allow for the fact that the Commission, and non-Aborigines generally, are dealing in this area with matters over which they have a limited knowledge and understanding;
· maintain basic rights, including basic individual rights, while avoiding, as far as possible, ethnocentric judgments about Aboriginal cultures and traditions.
Adherence to these principles supports, for example:
the rejection of codification and direct enforcement of customary laws as principal forms of recognition;
a functional approach to the recognition of marriage;
the rejection of a system of Aboriginal courts, while leaving open the possibility of establishing or retaining such courts in communities where they have general support;
rejection of the incorporation of Aboriginal customary laws into sentencing orders;
proposals to protect secrecy.
But there are other elements involved in reaching conclusions, including the matters listed in the Terms of Reference. The Commission has sought to avoid ‘reinforcing pre-existing stereotypes and myths or creating new ones,[1995] and also to avoid ethnocentric judgments about Aboriginal customary laws, but it is not possible to avoid making judgments, even at the risk of a degree of ethnocentricity. To postulate, as the Terms of Reference do, that Aboriginal people have the right to maintain their cultural identity and to practise their customary laws is to assume that this right, and the limits on it, are externally determined, and is not a recognition so much of cultural autonomy as of a cultural subordination. Perhaps elements of ethnocentricity could only be avoided if recognition of Aboriginal customary laws was part of wider negotiations for autonomy conducted between Aboriginal people and government. Furthermore, the very question whether the general legal system does or does not recognise Aboriginal customary laws in a given context is likely to have some impact upon those laws. The impact may be no less real for being indirect. For example, the exercise of sentencing discretions can affect the nature and extent of ‘traditional punishments’. [1996]What may appear an appropriate solution in one area may bring about unintended results in other areas. The Commission has as far as possible refrained from making recommendations that would have this effect. But conflicts between rules may be practically unavoidable. For example, the recognition of traditional marriage for the purposes of property distribution on death may conflict with other Aboriginal traditions, practices and perceptions (eg the idea that a wife is, compared with her husband’s family, a ‘stranger’ and therefore less entitled). Where such conflicts occur, the Commission has proceeded on the basis that Aboriginal people should have access to benefits or rights under the general law, should they wish to avail themselves of them.[1997] But that premise itself involves a certain preference for individual freedom as opposed to the traditions of a group. As this example demonstrates; the translation of concepts and values between cultures is necessarily imprecise and difficult. As one submission put it:
The men to whom I spoke found it very difficult to correlate particular aspects of their laws to the human ‘European’ Law, for the reason … that their law is an extremely complex whole, and it is not possible to extract one piece without affecting the rest of the structure.[1998]
These difficulties are increased by continuing lack of knowledge of the ways in which Aboriginal societies are responding to the general legal system, and to a range of other factors, material and ideological, and by a persistent tendency on the part of non-Aboriginal Australians to assume that Aboriginal customary laws and traditions are now not merely changed but disappearing, transitory. There is an associated assumption that equality inevitably involves, sooner or later, an assimilation of lifestyles and values, and that Aborigines themselves generally want, or are prepared to accept, this state of affairs. Profound observers disagree:
Various European things — our authority, our customs, our ideas and goods — are data, facts of life which the Aborigines take into account in working out their altered system. But I have seen little sign of its going much beyond that. Those Aborigines I know seem to be still fundamentally in struggle with us. The struggle is for a different set of things, differently arranged from those which most European interests want them to receive. Neither side has clearly grasped what the other seeks. All this issues in a dusty encounter to which nothing yet is particularly clear.[1999]
1036. A Change in Focus? Issues of the relationship between Aboriginal people and the wider Australian community fall into a number of different categories. One such category involves the provision or delivery of government services of various kinds. Some of these (eg education, social security) may be of general application, although the special needs and characteristics of Aboriginal communities may require modification or adjustment in the way the service is delivered. A second category involves very basic questions of the position of Aboriginal people within the Australian community and society, including questions of the extent to which Aboriginal communities are entitled to determine their own future through the exercise of local autonomy or local self-government. So far, Aboriginal policy has usually been regarded not as raising issues of local autonomy or self government so much as involving programs for Aboriginal advancement, attempts at resolving problems of Aboriginal welfare, and the delivery of services to Aboriginal people. To question the adequacy of a ‘service delivery’ approach is not to deny the need for services, or, for that matter, the need for the reforms recommended in this Report. But it is necessary to treat questions of self-government and autonomy as separate and distinct matters, for negotiation between governments and Aboriginal people. Claims to autonomy or self-government are starting to be articulated by indigenous groups in international forums, and Australian Aboriginal groups have been active in this process.[2000] In Canada that change of focus, from services to self-government, has to a considerable extent been made. Developments in Canada include the following:
Self-government. A Parliamentary Committee which reported in 1983 on Indian Self-Government recommended a significant change in the relationship between the Crown and the Indian people. It proposed that Indians be regarded as nations within Canada with considerable control, under the Constitution, of matters within their reserve borders, as well as direct funding to Indian First Nation Governments who would be free to make their own policies and set their own priorities.[2001] The Committee also recommended that the right of Indian people to self-government should be specifically stated and entrenched in the Constitution of Canada.[2002] Since the completion of the Report, an Indian Self-government Bill (Bill C52 of 1984) was introduced into the Parliament for discussion purposes; after discussion and criticism, a revised Bill has now been circulated for discussion.[2003]
Constitutional initiatives. As part of the process of patriating the Canadian Constitution, a new Constitution Act 1982 came into effect. Section 35 of the Constitution, as amended, provides:
(1) The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognised and affirmed.
(2) In this Act, ‘Aboriginal peoples of Canada’ includes the Indian, Inuit and Metis peoples of Canada.
(3) For greater certainty, in subsection(1) ‘Treaty Rights’ includes rights that now exist by way of land claims, agreements, or may be so acquired.
(4) Notwithstanding any other provision of this Act, the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Section 37 of the Constitution requires a series of First Ministers Conferences, consisting of Aboriginal representatives, Provincial Premiers, the Prime Minister and the leaders of the two Territories, to discuss and seek to define Aboriginal and treaty rights. These meetings are continuing.
Land claims. In Canada as in Australia a primary claim made by indigenous people relates to land, but negotiations there have occurred as part of comprehensive claims settlements with elements extending well beyond land rights. For example the COPE (Committee of Original People’s Entitlement) Settlement of the Claims of the Inuit people of the MacKenzie Delta area of the Western Arctic in Northern Canada involved the extinguishment of Aboriginal title over the traditional lands (approximately 435 000 square kilometres) of a group of Inuvialuit people in return for a much smaller but defined area, as well as specified sums of money for particular purposes. Provisions of the agreement cover surface and subsurface rights, ownership of certain waters, hunting and fishing rights and participation in wildlife management, future land ‘use planning and environment decisions. Major negotiations have also taken place with the Council of Yukon Indians, the Yukon Territory Government and the Government of Canada.[2004]
It is clear that the indigenous peoples of Canada no longer seek merely the provision of finance for particular projects or the provision of services from the federal, provincial and territory governments. Their claims are now framed in terms of self-government or autonomy, qualified by reference to the circumstances and demands of the particular group. They seek the right to determine their own priorities, not to have them determined for them.[2005]
1037. Conclusion. There are important similarities between Aboriginal people and Canadian Indians, and equally important differences (including important historical and demographic differences). But whatever the differences, the Canadian developments do demonstrate the potential for resolving problems through agreement on measures of self government in particular fields, and thus help to put this Reference into proper focus. The Commission’s proposals are presented not only, or even principally, as a concession to Aboriginal claims or demands. The recognition of Aboriginal customary laws is not part of a negotiated and independent settlement of claims, nor is it as such a matter of self-government or autonomy. The recommendations are primarily a response to the legal system’s search for justice in dealing with the Aboriginal people of Australia, a people with distinctive traditions and ways of life. Seen in this perspective, the recognition of Aboriginal customary laws has the aspect of a principled response to legal and cultural diversity, and not just of another government ‘service’. In the search for a principled response to the question of the recognition of Aboriginal customary laws by the general legal system, it is proper to use the various agencies at hand, including both Aboriginal agencies such as legal services and child care agencies,[2006] and government bodies such as the Law Reform Commission. This applies both to the formulation of proposals and to their implementation. To go beyond that and to establish an official agency along the lines suggested in para 839-40 and 1034 would be to pre-empt the more basic issues of self-determination or self-government. An official agency, established by government or at its instigation, carries the risk that these basic issues become in effect a matter for unilateral determination rather than negotiation. An ‘expert’ body might effectively take over a decision-making role, with the result that any action would not be a reflection of Aboriginal views, priorities or initiatives. For these reasons, as well as those stated in para 838-42, the Commission does not recommend the establishment of an overarching Aboriginal agency. The initiative for such an agency must come from Aboriginal people.