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37. The Character of Aboriginal Customary Laws. British settlers who came into contact with the Australian Aborigines came into contact with a people having their own well-developed structures, traditions and laws. These were not the same (or even necessarily similar) for the different Aboriginal groups, and the risk of inaccuracy inherent in any generalisation about them has been greatly increased by the impact of settlement and the interactions between Aborigines and settlers. Despite such differences, an ‘Aboriginal commonality’ has been perceived,[1] and some basic generalisations can be made. In particular, it can be said that mechanisms for the maintenance of order and resolution of disputes, that is, a system of law, existed within Aboriginal groups. Responsibilities for maintaining the law varied with the context and the persons involved, and the roles which individuals played were strongly influenced by considerations of kinship. This was one major reason why, except with respect to certain very serious infringements of a fundamental or religious character, there was no consistent or inevitable correlation between wrongdoing and response. By contrast, in the ‘religious’ realm the sanctions for violations of the law were perceived as ‘supernatural’, even where human agency might be involved. Rules of behaviour were thought of as inscribed in social relations and in features of the landscape. These rules dealt with many aspects of life, and included responsibilities of various kinds for land and for objects and ideas associated with land, complex structures of kinship and family groupings, patterns and rules of marriage and. child care, and procedures for the conduct and resolution of disputes. This variety was stressed by Dr Diane Bell, who commented that customary laws need to be seen as:
both a body of rules backed by sanctions and as a set of dispute resolution mechanisms. At a more informal level it was also a series of accepted behaviours which allowed daily social life to proceed. The formal rules ate backed by sanctions and ate clearly articulated in terms of what one should do and why. These shade into more informal areas of behavioural controls which may never be clearly stated, but which are the staff of interpersonal relationships, the self-regulating patterns of interaction.[2]
There is a considerable body of literature which seeks to record and analyse these traditions and patterns of behaviour — part of a much larger body of writing on Aboriginal societies themselves. However, so far as Aboriginal traditions and societies today are concerned, more is known about some aspects of some of these societies than about others. For example, more is known about kinship and marriage,[3] the role of women,[4] local economic activities (including hunting, fishing and foraging)[5] and Aboriginal myths and religion[6] than about such matters as concepts of authority or the dynamics of dispute resolution[7] or the precise ways in which contact with Europeans and British law affected those societies, and their responses to such influences.[8] In particular few attempts have been made to describe in any systematic way the character of Aboriginal customary laws.[9]
38. The Survival of Aboriginal Customary Laws. Despite the lack of detailed knowledge in certain areas, there are many indications that Aboriginal customary laws and traditions continue as a real controlling force in the lives of many Aborigines.[10] It is not necessary to describe those laws and traditions in detail. Some understanding of them is necessary, however, if appropriate forms of recognition are to be formulated. This Report will examine proposals for recognition in a range of different social and legal fields, and the relevant aspects of Aboriginal customary laws or traditions be discussed in these specific contexts. But the continuance of Aboriginal customary laws and traditions has been paralleled by changing legal and administrative policies towards its ‘recognition’ or ‘suppression’ — and a brief outline of these is necessary, in the same way as an understanding of the history of Anglo-Australian policy towards Aborigines which was outlined in Chapter 3.
[1]B Sansom, ‘The Aboriginal Commonality’ in RM Berndt (ed) Aboriginal Sites, Rights and Resource Development, University of Western Australia Press, Perth, 1982, 117.
[2]D Bell, ‘Aboriginal Women and the Recognition of Customary Law in Australia’ in Commission on Folk Law and Legal Pluralism, Papers of the Symposium on Folk Law and Legal Pluralism, XIth International Congress of Anthropological and Ethnological Sciences, Vancouver, Canada, August 19-23, 1983, Ottawa, 1983, vol 1, 491, 503. Generally on Aboriginal customary laws see RM Berndt Bt CH Berndt, The World of the First Australians, 4th rev edn, Rigby, Adelaide, 1985 esp ch 10, and the works referred to in the following footnotes. See further para 99-101.
[3]AP Elkin, The Australian Aborigines, rev edn, Angus & Robertson, Sydney, 1979, chs IV-VI; LR Hiatt, Kinship and Conflict, Australian National University, Canberra, 1965 esp chs 3 & 4; Berndt & Berndt (1985) chs III & VI; K Maddock, The Australian Aborigines, 2nd edn, Penguin, Ringwood, 1982, 57-83, 89-95, and the works cited in para 223.
[4]See eg PM Kaberry, Aboriginal Woman, Sacred and Profane, Border Press, New York, 1973; CH Berndt, ‘Digging sticks and spears, or the two-sex model’, in F Gale (ed) Women’s Role in Aboriginal Society, Australian Institute of Aboriginal Studies, Canberra, 1974, 64; A Hamilton, ‘Aboriginal Women: The Means of Production’, in J Mercer (ed) The Other Half, Penguin, Sydney, 1975, 167; D Bell, Daughters of the Dreaming, McPhee, Gribble, Sydney, 1983 esp ch IV; Berndt & Berndt (1981) Index sv ‘Women, status of’; F Gale (ed) We are Bosses Ourselves, Australian Institute of Aboriginal Studies, Canberra, 1983. A good concise account is CH Berndt, ‘Aboriginal Women and the Notion of “The Marginal Man”‘, in RM Berndt and CH Berndt (ed) Aborigines of the West, 2nd rev edn, University of Western Australia Press, Perth, 1980, 28.
[5]See the works cited in para 882-7.
[6]See eg WEH Scanner, ‘Religion, Totemism and Symbolism’ (1962) in WEH Stanner, White Man Got No Dreaming, Australian National University Press, Canberra, 1979,106; TGH Strehlow, Aranda Traditions, Melbourne University Press, Melbourne, 1968; Elkin (1979) ch IX; E Kolig, The Silent Revolution, Institute for the Study of Human Issues, Philadelphia, 1981; Berndt & Berndt (1985) chs VIII & IX; Maddock (1982) chs 5, 7.
[7]On the importance of land as a source of authority see TGH Strehlow, ‘Geography and the Totemic Landscape in Central Australia: a functional study’ in RM Berndt (ed) Australian Aboriginal Anthropology, U of WA Press, Perth, 1970, 92. For examples of particular systems of conflict resolution see NM Williams, ‘Two Laws: Managing Disputes in a Contemporary Aboriginal Community’, unpublished, Canberra, 1983; J Taylor, Submission 388 (11 October 1983); N Peterson, ‘Buluwandi: A Central Australian Ceremony for the Resolution of Conflict’ in RM Berndt (ed) Australian Aboriginal Anthropology, U of WA Press, Perth 1970 200; AP Elkin, ‘The Kopara: the Settlement of Grievances’ (1951) 2 Oceania 191; GC Wheeler The Tribe and Intertribal Relations in Australia, John Murray, London, 1910, 116-147; RM Berndt, ‘Law and Order in Aboriginal Australia’ in CH Berndt and RM Berndt (ed) Aboriginal Man in Australia, Sydney, Angus & Robertson, 1965, 166; D Bell, ‘Re Charlie Jakamarra Limbiari. Report to the Court’ unpublished report tendered in R v Charlie Limbiari Jagamara, unreported, NT Supreme Court, 28 May 1984. For further discussion see para 692-720 and the works there cited.
[8]See ch 3 and the works there cited, esp Stanner (1959); Reynolds (1981); Loos (1982).
[9]See K Maddock, ‘Aboriginal Customary Law’ in P Hanks & B Keon-Cohen (ed) Aborigines and the Law, George Allen &c Unwin, Sydney, 1984, 212. See further para 98-101.
[10]A fact that was repeatedly borne out during the Commission’s public hearings and field trips. See eg on: kinship and marriage: G Gleave Transcript of Public Hearings Willowra (21 April 1981) 1578; J Bucknall, Transcript Strelley (24 March 1981) 401; P Roe, Transcript Broome (25 March 1981) 475-6; Transcript of Womens Meetings, Kowanyama (28 April 198) 179; C Yirrwala, Transcript Maningrida (7 April 1981) 1042; on local economic activities: H Toby, Transcript Mornington Island (25 April 1981) 1802; on traditional punishments: J Roberts, Transcript Darwin (3 April 1981) 902-3; D Frazer, Transcript, Alice Springs (13 April 1981) 1443-4; D Manjeriju & others, Transcript Maningrida (7 April 1981) 1050-7; T Baloy, Transcript Maningrida, (8 April 1981) 1072; L Roughsey, Transcript Mornington Island (24 April 1981) 1723-26; on dispute resolution: J Mungudja, Transcript Maningrida (7 April 1981) 1046-50; traditional authority figures: J Biendurry, Transcript Derby (27 March 1981) 601; on secrecy and ritual life: D Manjeriju & others Transcript Maningrida (7 April 1981) 1050-2; L Lennard, Transcript One Arm Point (28 March 1981) 642-7; L Roughsey & others, Transcript Mornington Island (25 April 1981) 1795. And see para 103, 226-32, 455-7, 694-720, 882-91.