Edward River[955]

694. Background. Edward River is a remote Aboriginal community, with a population of approximately 350-380, situated on the western side of the Cape York Peninsula. It is 130 kilometres south of the mining town of Weipa and 550 kilometres north-west of Cairns. It was established as a mission of the Anglican Church in 1939 and was run as a mission until relatively recent times. It is an Aboriginal reserve under the Aborigines Act 1971 (Qld) and has an Aboriginal court established under that Act.

695. Dispute Resolution. Disputes at Edward River, which do not necessarily involve offences against the general legal system, are dealt with in three different ways. More serious offences committed by Aborigines and all offences committed by non-Aborigines are dealt with by the ordinary Queensland court system. These constitute a very small percentage of offences committed by Aborigines. Much more commonly, inter-Aboriginal disputes are dealt with either by the local Aboriginal Court or in accordance with ‘old custom’ or ‘Murri law’[956] methods of resolving disputes. There is much overlap between matters dealt with in the Aboriginal Court and. those matters which would formerly have been resolved in accordance with ‘old custom’. For example, the ‘old custom’ way of resolving disputes could often involve a fight between one Aborigine and another. Each person might then come before the Aboriginal Court charged with assaulting the other, an offence under the Reserve by-laws. The features of these two separate systems of resolving disputes and the interaction between them will be briefly outlined here.

696. ‘Old Custom’ or ‘Murri Law’. In essence, ‘old custom’ is the Aboriginal way of resolving disputes at Edward River which arise as a result of transgressions of local rules of behaviour. The Aboriginal court system on the other hand is seen as the ‘white man’s’ way of assessing transgressions and applying punishments to them.[957] ‘Old custom’ law as it operates at Edward River has an unwritten but well understood code of behaviour or ‘right conduct’, and there are clear procedures to be followed by these seeking redress for breaches of the code. Common breaches of conduct that would require some form of action include:

1. Omission of kinship duties — principally revolving around the distribution of food and gifts.

2. Mistreatment — this usually arose in domestic context and involved unfair physical violence.

3. Infidelity.

4. Breaches of bestowal expectations and arrangements.

5. Insult — this could involve using the personal name of a recently deceased person or swearing with the intention of provoking someone else.

6. Threatening or causing injury.

7. Trespass — for example encroaching into another’s country or the resources of that country.

8. Failure to consult or to acknowledge rightful decision-making authority.

9. Homicide.

10. Breaches of ceremonial ritual codes.[958]

697. Responses to ‘Wrongs’. Certain breaches (e.g. breaches of taboo) brought automatic retribution by way of supernatural agencies. However breaches which imposed a responsibility on a person or group of persons to act were likely to have one of three outcomes. First, the aggrieved person may decide to do nothing about it.[959] Secondly a person might seek private redress, which involved a conscious decision not to resolve the matter in public but focussed on retaliation and punishment?[960] Seeking private redress often resulted in long-running disputes, with the effect of exacerbating relations between the disputants. The third way in which a person could seek redress of a breach of the code of behaviour was to have the matter resolved publicly. A dispute that became public was usually resolved to the parties’ satisfaction so that the problem with private redress, of long-running feuds and paybacks, did not arise.

Public disputes most commonly eventuated in the omission of kinship duties, in breaches of bestowal expectations and arrangements, in instances of insult or real or threatened injury and occasionally in cases of infidelity, trespass and homicide.[961]

698. Public Dispute Resolution. As observed by Taylor, this form of resolution has a number of clearly identified stages. Not all disputes necessarily go through each of these, as some may be resolved along the way. But generally a dispute resolution would contain each of six stages:

  • Declaration — a public announcement by the aggrieved person setting out the details of the transgression.

  • Rejoinder — denial or counter-charge by the accused.

  • Argument — public disputation between the parties during which they would both usually be armed with their fighting weapons: ‘both disputants would stride up and down gesticulating, arguing loudly and waving their weapons in a threatening manner’.[962] During this stage other persons standing in special relationships to the disputants would arrange themselves in such a way that they could assist either party in the dispute if required.

  • Insult and physical combat — this generally involved fighting with weapons between the parties, often escalating as other persons aligned with each of the disputants became involved. During this phase certain persons were expected to play the role of ‘blockers’. ‘Blockers’ sought to ensure that disputes and the fighting did not get completely out of hand and they attempted to contain the dispute to the parties involved. To some extent they acted as umpires in the dispute, first attempting to stop violence and then, if physical conflict followed, ensuring there was no foul play.

  • Separation — this occurred as a result of a number of factors including physical exhaustion, the need for injuries to be treated, satisfaction obtained by each of the disputants and the feeling that the matter had been resolved:

The Edward River notion of fair play stressed that those who initiated trials-at-arms should come away bearing equal injuries irrespective of the nature of the wrong action that triggered the combat in the first place.[963]

  • Reconciliation — this was indicated by the return of normal relationships between the parties.

699. Changes to Public Disputing. Taylor suggests that such public methods of resolving disputes have changed little over the last 40 years, although of course there has been some impact caused by the responses of non-Aboriginal staff and the impact of their views on Aboriginal people. The lay-out of the village and the fact that there are now houses with clearly defined territorial areas attached to them and roads through the community has also had some impact. Public disputes generally occur in the public areas rather than in a person’s private yard, and the use of weapons in disputes is still common. In fact the underlying threat of violence is a crucial feature in all public disputing.[964] The role that customary methods of disputing play at Edward River has become more complicated with the more ready availability of alcohol. Alcohol can be involved in ‘old custom’ disputing but it also has the general effect of increasing tensions between people resulting in fights. It is also the cause of a large number of offences coming before the Aboriginal court.

700. The Aboriginal Court. The system of Aboriginal courts which operates on reserves in Queensland is set out in more detail in chapter 29.[965] At Edward River an Aboriginal Court, constituted by two or more Aboriginal Justices of the Peace or members of the Aboriginal Council,[966] may hear charges against Aborigines resident on the reserve for breaches of the regulations and by-laws applicable to that reserve. These rules are essentially of a local government kind, but there are also general provisions concerning the conduct and behaviour of Aboriginal residents. New legislation dealing with Aboriginal courts was enacted in 1984,[967] but the courts continue to operate in much the same way. In a sample of cases coming before the Edward River Court Taylor found that 93 people (86 men and 7 women) appeared on a total of 106 charges. The offences committed fell largely into two categories: 41 (38%) of the charges laid were directly associated with verbal or physical assault while 54 (51%) of the charges related either to the importation of alcohol onto the reserve or its consumption there,[968] not all of the first category of cases can be said to have a customary basis certainly a number of them resulted directly from the various stages involved in a public dispute.

In many instances the charges themselves arose out of an evolving and culturally indigenous system of dispute resolution. The true causes of these disputes lay elsewhere and the appearance of people before the court was often times just a coda to a process that perforce had to function independently of the introduced court system.[969]

701. Range of Cases Heard. Taylor divides the cases coming before the Aboriginal Court into three kinds. There are those cases which involve contravention of the community’s by-laws which are essentially of a local government kind e.g. relating to health, hygiene or government property. Secondly, there are those charges which result directly from ‘old custom’ disputing. Often no charges were brought as a result of a public dispute, either because the matter did not come to the attention of officials or because it was not considered by them as sufficiently serious to justify laying charges. The third type of case involved fights and disturbances following the consumption of alcohol. There was a significant overlap between the second and third categories.

702. Interaction Between ‘Old Custom’ Disputing and the Aboriginal Court. The introduction of an Aboriginal court at Edward River in 1965 had an impact on the level of old custom disputing. Aboriginal residents took into account the fact that certain conduct, even if part of ‘old custom’ dispute resolution, might involve an appearance before the Aboriginal court with, for example, the risk of higher fines for each appearance. Taylor states that the Aboriginal court at Edward River played a totally different role depending on whether one looked at it from the viewpoint of Aborigines or from that of the staff of the Department of Aboriginal and Islander Advancement.

In the view of the Aboriginal residents the court’s most important function lay in the avenue it provided for reconciling the consequences of ‘old custom’ dispute settling with European notions of law and order. Since the legal codes over which the court was empowered to act did not include customary law except for a strongly worded paragraph on sorcery ... the only way Edward River people could obtain redress for breaches of their traditional codes was to engage in old custom disputing. But ‘old custom’ disputing, as people well knew, evoked negative reactions from the Europeans. Hence the processes of the court provided a way of ‘making level with the staff’. The court did more than simply propitiate European sensibilities concerning the incidence of abusive language, threatening behaviour and physical assault. It also helped to control the degree to which individuals sought redress through ‘old custom’ disputing.[970]

However, it was an important shortcoming that the court did not provide any avenue for certain breaches of Aboriginal codes of conduct to be dealt with. The non-Aboriginal staff had a completely different view of the Aboriginal court and the function it should perform:

In the DAIA view, the Aboriginal court was both a training device intended to give Aborigines experience of the legal processes of the wider Australian community and a means of enforcing behaviour thought to be necessary and desirable in a group that officially was supposed to be assimilating to the way of life of the donor culture.[971]

703. Non-Aboriginal Perceptions of ‘Old-Custom’ Disputing. This difference of views has a number of wider implications for Aboriginal people:

When DAIA staff failed to recognise ‘old custom’ disputing for what it was and instead interpreted it as ‘lawless’ or ‘primitive’ behaviour, then every instance of an ‘old custom’ dispute coming before the Aboriginal Court as a breach of the peace provided verification for a strongly held though unofficial view, namely, that the Edward River people were not yet ready for independence and responsible self-management. While this misperception existed and while no alternative forum was provided for the resolution of ‘old custom’ disputes, it would seem that Edward River people would never be trusted with the management of their own affairs.[972]

704. Perceptions of Violence. A further important difference in perception between the Aboriginal members of the community and the white staff related to the attitude to fighting and personal assaults. In Taylor’s view most Aborigines did not consider that fighting should be of any concern to the Aboriginal court or to outsiders. It was a way of resolving personal differences, well accepted by all parties. Taylor doubts whether any charges concerning fighting would have been brought if the incident in question had not been drawn to the attention of Europeans in some way. Several fights attended by the Aboriginal police did not result in any charges being brought because no senior non-Aboriginal member of staff was present.[973] The latter, by contrast, took the view that fighting and other disturbances including arguments and bad language threatened the peace and good order of the settlement and therefore should be dealt with by the Aboriginal court. This attitude had brought changes to traditional disputing methods:

In deference to European sensibilities regarding violence they attempted to tone down the level of violence manifested in disputes and created territorial canons to suit the settlements physical structure and to lessen the likelihood of the non-involved being injured. As well they accepted the fact that they would have to pay a penalty whenever disputation took a violent turn.[974]

705. Non-Aboriginal Offences. There was some resentment that what Aboriginal residents perceived as wrong doing by staff could not be dealt with by the Aboriginal court. Even if the Aboriginal court had had jurisdiction over such staff, some of these cases would not have fallen within the jurisdiction of the court, or even constituted a criminal offence. The result was that Aboriginal members of the community tended to seek their own ways of resolving such problems. For example, on the occasions when personal relationships between members of the Aboriginal community and the white staff created tensions, the community was able to exert pressure to have staff removed by notifying senior officials of DAIA or local politicians. In this area of community concern the court was seen as totally inadequate.

706. Summary. As observed by Taylor, ‘old custom’ disputing at Edward River is still carried out in much the same way as it was before the mission was established in 1939. Some changes have occurred, under the influence of the staff and also through the operation of the Aboriginal court. Despite these influences the resolution of disputes in a public way is still common. The Aboriginal court as it currently operates hardly provides a mechanism for resolving such disputes, as it contains no provision for airing personal grievances and seeking a satisfactory solution. Public disputing causes concern not only to the staff but also to many Aboriginal members of the community who consider aspects of the disputing process to be unsatisfactory, especially the violence and injuries suffered. There is .for example often criticism by Aborigines of the Aboriginal police for not doing their job properly and preventing fights from occurring, and there is strong feeling over the effect that alcohol is having. The Council at Edward River have never attempted to draft its own by-laws.[975] Several factors account for this, including the lack of available drafting expertise, uncertainty as to whether the Aboriginal court is an appropriate forum, lack of knowledge of the right to propose by-laws and a general over-dependence on the non-Aboriginal DAIA staff. Taylor suggests that it may be possible to prepare by-laws which take account of customary practices, although finding someone to articulate the customs to the satisfaction of both Aboriginal residents and staff might be difficult.