The Views of Aboriginal People

16. The Need for Aboriginal Involvement. In Discussion Paper 17 the Commission stated

Questions in this paper affect all Aborigines. They must be consulted and their views considered. The Commission will not make its final recommendations until it has consulted them and other Australians.[10]

It is obvious that any recommendations for the recognition of Aboriginal customary laws require careful consultation with Aboriginal people who would be affected by that recognition. But consultation is not enough. The Commission believes that proposals for recognition of Aboriginal customary laws, which are special to and would specially affect Aboriginal people, require their general acceptance. The Commission has been keenly aware of the remarks of Justice Woodward in the two reports of the Aboriginal Land Rights Commission:

I am convinced that an imposed solution to the problem of recognising traditional Aboriginal land rights is unlikely to be a good or lasting solution. Although a result reached, so far as possible, by process of consultation and agreement will undoubtedly take longer to achieve, it is far more likely to be generally acceptable and to have a permanent effect.[11]

The same is true of the recognition of Aboriginal customary laws generally.[12]

17. The Extent of Aboriginal Involvement. In the ways already indicated, the Commission has sought the views of Aboriginal people and organisations throughout Australia. In this process a considerable onus has been cast on Aboriginal organisations (eg Aboriginal Land Councils, Child Care Agencies and Legal Services) and individuals to articulate Aboriginal needs and demands. Although the Commission made mistakes in consultation (for example in failing to implement at an earlier stage better systems of seeking the views of Aboriginal women), steps were taken, within the limits of the Commission’s resources, to correct these deficiencies when they were pointed out. In a number of cases return trips were made to Aboriginal communities where it was indicated to the Commission that further consultation was desired.[13] In the case of Groote Eylandt, for example, Commission staff returned in October 1985 to discuss issues raised in the Report of the Groote Eylandt Aboriginal Task Force.[14]

18. Discussions with Aboriginal Women. One important need which became clear as the Commission’s work progressed was the need to implement better systems of consultation with Aboriginal women. As was pointed out in the Report of the Field Trip to the Pitjantjatjara lands, there was a great reluctance by the men to involve the women in discussion, and by women to contribute to such discussion in large mixed groups.[15] Consequently, women’s views were not always adequately presented to the Commission.

‘Womens business’ was rarely, if ever taken into account, very often for the simple reason that it was not the province of Aboriginal men. ‘It is not their business’, Pincher Numiari of Wattle Creek, NT in explaining to Southern Koorie people how Aborigines live in the north, said of women, ‘Our women have their own secret business too, called jarata. I don’t know much about it, because I am a man. The Mudbura, Walbiri, Pitjantjatjara, all have this business too.’ He then went on to discuss his views as a man.[16]

The Commission’s early response to this need took the form of separate women’s meetings during the initial round of Public Hearings, and of tapes prepared on different occasions using a female voice both in English and some Aboriginal languages. The Commission was also assisted by a substantial report, prepared by Dr Diane Bell and Ms Pam Ditton, setting out the views of Aboriginal women living in Central Australia on the issues covered by the Reference. The report,[17] was requested by the Central Australian Aboriginal Legal Aid Service, and involved discussions with many Alyawarra, Warlpiri, and Warumungu women, together with women from Murray Downs, Willowra, Anningie, Tennant Creek, Ngurrantiji, and from the town camps in Alice Springs. Subsequently the Commission relied heavily on advice given by Dr Bell and Ms Ditton as consultants to the Commission, which ensured that the Commission was much better equipped to listen to Aboriginal women on its return visit to Central Australia in October 1982.[18] Women were also major participants in the meetings and hearings in south- western Australia and in parts of Queensland. There was also discussion with Aboriginal organisations such as the Federation of Aboriginal Women and the Aboriginal Child Care Agencies. The views of Aboriginal women in all parts of Australia are of great importance in ensuring that balanced and representative views are presented. As Bell and Ditton comment, this has not always been the case:

Women made it abundantly clear that they did have a role and that they should be consulted on community affairs. How this is to be effected is more difficult to decide. Women had some suggestions as to the modifications required in the legal institutions with which they are in daily contact, others were apparent to us as we explored the literature on law reform and reconciled this with our understanding of women’s roles. Immediately obvious is the lack of attention paid to women in the consultative process, the paucity of data on this topic of women’s roles, and from what little exists and the comments we collected in response to our questions, the critical need to allow that women have a role in the maintenance of the system.[19]

19. The Adequacy of Consultation. There are difficulties, for an inquiry such as this, in ensuring proper consultation with Aboriginal people. Expressions of opinion from Aboriginal Councils, for example, may or may not represent the views of the local community. Many of the proposals are necessarily of a technical kind, on which non-specialists would find it difficult to express clear or concluded views. Many of the more articulate Aboriginal representatives come from urban or semi-urban areas, and their views may not be representative of rural or more traditionally oriented people.[20] Assessing the adequacy of the Commission’s discussions with Aboriginal people requires first a statement of its purpose. The Commission has already drawn attention to its rather specialised role,[21] which is not to speak for Aboriginal people, but to articulate what it believes to be helpful and workable proposals for the recognition of Aboriginal customary laws at the present time, against a background of the general arguments for and against such recognition. What action should be taken on those recommendations is a matter for the relevant Governments and Parliaments, in consultation with Aboriginal people. For the Commission’s purposes, discussion with Aboriginal people was relevant to allow the Commission:

  • to suggest difficulties, needs and problems to be addressed, and ways in which this might be done; and

  • to assess in a provisional way the general acceptability or otherwise of proposals.

20. The Commission’s Assessment. On this basis, and despite the difficulties already referred to, the Commission believes that its program of seeking information and of discussion has been sufficient to enable it to make the recommendations that are made in this Report. There was widespread agreement among Aboriginal people on certain general matters, such as the need for the ‘two laws’ to work together. A number of Aboriginal communities expressed a keen desire for the general legal system to support those with traditional authority in their endeavours to deal with offenders in their own communities. For some, at least, the general Australian law was considered too weak. It did little, in particular, to solve alcohol-related conflicts. But Aboriginal people also wanted to ensure that they maintained the option to ‘send their people through the white court system’.[22] Thus there was support for the general idea of recognition of Aboriginal customary laws alongside the general law. There were, of course, disagreements and differences of emphasis when it came to the detailed implementation of these objectives. These differences of opinion are another indication of the complexity of the issues. The difficulties inherent in understanding Aboriginal laws and traditions and in formulating an acceptable legal response to them presented real obstacles to consultation. As the then Deputy National Chairman of the National Aboriginal Conference commented:

These are considerations for Aboriginals to anguish over and to decide. They cannot be rushed to suit the timetables of government Commissions. You cannot condense thousands of years of wisdom into a take it or leave it package.[23]

An additional feature was the way in which, as debate proceeded and the Commission’s tentative proposals evolved, earlier views and perceptions of the issues tended to change. As one observer noted:

This is a particularly difficult time for the Commission to be undertaking this reference. In several senses, it is aiming at a ‘moving target’. Historical and anthropological views regarding the aboriginal/white interface are changing and developing rapidly. To a large degree, this is the result of recognition that there are real problems to be solved ...[24]

On the other hand, as attention was focused on specific measures or proposals in particular areas a measure of agreement emerged, both as to the Commission’s basic approach and its particular recommendations. Taking into account all these factors, the Commission makes the recommendations set out in Chapter 37 in the belief that these recommendations are desirable on their merits at the present time, and that they are likely to gain the general support of the Aboriginal people affected by them.[25] However, for the reasons that have been given, this judgment needs to be confirmed by the Government though direct consultation with appropriate Aboriginal organisations and people. Recommendations to this effect, and discussion of other related issues of implementation of this Report, are set out in Chapter 39.

[10]ALRC DP l7, 7.

[11]Aboriginal Land Rights Commission, First Report, AGPS, Canberra, 1973, para 8; Second Report, AGPS, Canberra, 1974, para 8.

[12]See ch 39 for further discussion.

[13]See ALRC ACL Report Report 7, Central Australia (October 1982) 1-2; ALRC ACL Field Report 8, Eastern Goldfields, Western Australia (May 1983) 1.

[14]The Groote Eylandt Aboriginal Task Force, Report, Angurugu, 1985, para 3.4 recommended that the ALRC ‘undertake an investigation into the incorporation of Groote Eylandt Customary Laws within the judicial system presently operating in Groote Eylandt in close consultation with the leaders of the Aboriginal Communities’. For discussion see para 459-63, 683.

[15]ALRC, ACL Field Report 1, The Pitjantjatjara (May 1978) 26, 29.

[16]Bell & Dillon (1984) para 1.17.

[17]ibid.

[18]See ACL Field Report 7, 6, 9-10, 13-14, 15, 17-20, 24-5, 29-30, 35-7, 41-2, and Dr Bell’s comments, id, 43-8. See also ALRC-AIAS, Working Seminar (1983) 21-35 for further discussion of the issues.

[19]Bell & Ditton (1984) para 2.16.

[20]Similar comments were made by the Senate Standing Committee on Constitutional and Legal Affairs, which was concerned at the lack of Aboriginal awareness or understanding of the ‘Makarrata’ or treaty proposals: Senate Standing Committee on Constitutional and Legal Affairs, Two Hundred Years Later ... Report on the Feasibility of a Compact or ‘Makarrata’ between the Commonwealth and Aboriginal People, AGPS, Canberra, 1983, 119.

[21]See para 8.

[22]G Blitner Northern Land Council, Submission 92 (25 August 1978); RD Marika, Submission 111 (14 December 1978); W Lanhupuy, Submission 197 (17 February 1981); Peppimenarti Community Council, Submission 150 (6 April 1981); D Hope, Submission 264 (30 April 1981); Mossman Gorge Community, Submission 272 (6 May 1981); N Tabagee, Yungngora Community, Submission 298 (3 June 1981); and see para 195.

[23]R Riley, ‘Aboriginal Law and its Importance for Aboriginal People’ in HW Finkler (comp) Papers of the Symposium on Folk Law and Legal Pluralism, XIth International Congress of Anthropological and Ethnological Sciences, Vancouver, Canada, August 19-23, 1983. Ontario, 1983, 1010, 1014.

[24]JV Kimpton, Submission 391 (7 November 1983) 2.

[25] See further para 106, 194, 217.