21. The Relevance of History. The questions raised by the Commission’s Terms of Reference have been in one form or another the subject of debate and discussion since the earliest days of contact between Europeans and Aborigines. Government policies concerning the recognition or repression of Aboriginal culture and traditional life, and the place of Aboriginal people in the new society, have fluctuated, influenced by changing circumstances and public attitudes, by Aboriginal actions and reactions and by other factors. Indeed, so far as the recognition of Aboriginal culture and traditions is concerned it is possible to discern something of a cyclical process, with periods of tolerance, ‘protection’ or even qualified approval interspersed with periods of rejection when attempts were made to eradicate traditional ways and to ‘assimilate’ Aborigines, in the sense of absorbing them and denying them any separate identity. A similar cyclical pattern has long been identified in United States Indian policy.[1] The identification of such patterns or trends is of little help in leading to conclusions on matters of law or policy. But it does demonstrate the need for an historical understanding, for awareness of earlier debates and proposals. This Chapter sets out a brief account of the impact of European settlement on Aboriginal peoples, and of the development of ‘Aboriginal policy’. Chapter 4 is an account of the contact between Aboriginal customary laws and traditions and the introduced, now Australian, legal system. Against this background Chapters 5 and 6 analyse the extent to which, and the ways in which, Aboriginal customary laws may now be recognised by the Australian legal system. Chapter 5 deals with the arguments that the common law itself is capable of incorporating or recognising Aboriginal customary laws, in particular through a reassessment of the view that Australia was a ‘settled colony’. Chapter 6 deals with the ways in which courts and legislatures do now recognise Aboriginal customary laws in particular contexts. This survey forms the necessary historical and empirical basis for the analysis, in Part II of this Report, of the issues of principle and definition underlying proposals for the recognition of Aboriginal customary laws.

[1]See eg Task Force Three: Federal Administration and Structure of Indian Affairs, Final Report to the American Indian Policy Review Commission, Washington, US Government Printing Office, 1976, 6-7.