Aboriginal Customary Law
Source: 50th Anniversary Conference; Australasian Law Teachers' Association; Cross Currents: Internationalism, National Identity & Law; 1995 http://18.104.22.168/au/special/alta/alta95/sarre.html
The transportation of the English legal system into the Australian colonies occurred as slowly and as haphazardly as the transportation of the early convicts, military personnel and settlers (Cunneen and Libesman, 1995:8). There is, of course, no official legal controversy surrounding the fact of the reception of law itself. The 1992 Mabo decision (107 ALR 1) did not dispute that fact. The High Court did, however, conclude in that case (a conclusion confirmed in WA v Commonwealth, Wororra Peoples v WA and Teddy Biljabu and others v WA, High Court, March 16 1995) that some Aboriginal land law (that which attracted the status of 'native title') survived the colonisation process. What is far less certain is the fate of Aboriginal customary laws that were not concerned with title to land. Did traditional laws on subjects such as family relationships, title to goods, community justice mechanisms, inheritance and criminal law survive colonisation? If native title survived, why didn't other property law? Why didn't any traditional laws retain their credence? This issue was not addressed in any of the judgments in Mabo. The anomaly has recently been described by the Aboriginal and Torres Strait Islander Commissioner as 'absurd' (Dodson, 1995:2). Pearson asks the question,
How widely beyond Mabo are governments prepared to move in order to give recognition and credence to the operation of traditional law? (Pearson, 1994:182)
General answers to the above questions are not difficult to find. One can conclude with confidence that colonisers had little regard for indigenous law. To speak of indigenous systems of law at all would have challenged the view of the social anthropologists and international jurists of the day that 'natives' should be grateful for the blessings of colonisation. Colonists were, they maintained, superior and noble beings who brought with them civilised legal systems. Colonisation was the preferred option for civilisation. As the international European jurist Vattel wrote in 1758,
But now that the human race has multiplied so greatly, it could not subsist if every people wished to live after that fashion [as hunters and gatherers]. Those who still pursue this idle mode of life occupy more land than they would have need of under a system of honest labor, and they may not complain if other more industrious Nations, too confined at home, should come and occupy part of their lands' ...
... [W]hen the Nations of Europe ... come upon lands which the savages have no special need of, they may lawfully take possession of them and establish colonies in them ... (Vattel Book 1, Chapter 8, 18).
Academics have long pondered the question and effects of the extinguishment or otherwise of traditional or customary law (eg Daunton-Fear and Freiberg, 1977; Clifford, 1981:20; Hennessy, 1984; Maddock, 1984; Castles and Harris, 1987, Crawford, 1988, 1992) while others have found renewed interest in this subject post-Mabo (eg. Mulqueeny, 1993, Cocks, 1994, Sarre, 1996). At a 1994 conference in Darwin the issue again gained prominence:
Recognition must be given ... to the existence (and survival) of customary law. As indigenous cultures are organic (rather than static), customary law may exist (albeit in an evolved/evolving format) in contemporary communities, as well as in their more traditionally orientated counterparts. As Australian society examines socially just ways of dealing with its indigenous peoples, and as Aboriginal and Torres Strait Islander peoples continue to demand the right of more culturally appropriate responses, the importance of customary law cannot be underestimated (Social Justice Commissioner, 1995: |P 31).
In 1992 the Commonwealth, in implementing recommendation 219 of the Royal Commission into Aboriginal Deaths in Custody Report (Royal Commission into Aboriginal Deaths in Custody, 1991), requested a further report be prepared which outlined the Commonwealth government's progress on the recognition of customary law since a 1986 Australian Law Reform Commission report (infra). The report (Office of Indigenous Affairs, 1994) concluded that there had been no implementation of comprehensive customary law legislation due to the complexity of the issues and the fragmented nature of government in Australia. Most recently, on November 3 1994, the matter was reviewed by the Ministers whose portfolios cover this area. Federal and State Attorneys-General and Ministers for Aboriginal Affairs met (separately) in Melbourne on that day to lay the groundwork for further work in each jurisdiction towards formal or informal recognition of customary law.
This paper brings together a range of the issues associated with this topic.
The Official Legal Position
The issue of customary law was not one which had overly-stretched the minds of legal theorists in the first two hundred years of Australian colonial history. It was not possible, said the Supreme Court of New South Wales in R v Wedge  1 NSWLR 355, for example, for Australia to have two sets of criminal laws. Aboriginal defendants, the court confirmed, were subject to the law of New South Wales whether or not both victim and offender were Aborigines and whether or not they were to be subject to traditional law as well. This case confirmed some older legal precedents. In R v Neddy Monkey  VLR (L) 40 the court determined, in a matter that turned on the marital status of the defendant and the chief prosecution witness, that it would not compromise the general rules of evidence in order to take judicial notice of 'vague rites and ceremonies' (at 41). Furthermore, in R v Cobby (1883) 4 NSWLR 355, the Supreme Court of New South Wales determined that they would not and could not recognise a marriage of 'these aborigines, who have no laws of which we can have cognizance' (at 356). For almost two hundred years the Australian courts did not recognise customary law at all. If there were calls for it to be implemented into the Australian civil or criminal justice system, they were ignored, forgotten or denied because a declaration of its existence would have frustrated the establishment and development of the Australian legal system.
It is outside of the scope of this essay to examine the historical factors associated with the official indifference of Australian jurists towards customary law. One should, of course, be reminded of the enormous influence of early Christian missionaries who, arguably, set out to destroy indigenous culture, and especially traditional legal structures, as being anathema to a Christian world view.
For the Aborigines, submission to an extremely paternalistic and strongly antipathetic administration was the price they were willing to pay for access to subsistence resources and for the continuation of what they perceived as autonomy in their internal social and religious affairs (Tonkinson, 1988:64).
Be that as it may, the general law gave scant regard to customs, rites and traditions of Australia's indigenous peoples. There was little official clamouring for any recognition whatsoever.
Winds of Change
By 1971, however, there began to appear signs that things could change. In the landmark land rights decision, Milirrpum v Nabalco Pty Ltd and the Commonwealth (1971) 17 FLR 141 Justice Blackburn of the Northern Territory Supreme Court decided that there had been a system of law in existence in Australian Aboriginal societies in 1788. The evidence showed, he asserted,
... a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called 'a government of laws and not of men' it is that shown in the evidence before me (at 267).
Justice Blackburn, however, tied to the Privy Council precedent then existing of Cooper v Stuart (1889) 14 AC 291, could not recognise customary law or, more specifically, communal native title (at 244-245) despite the above remarks. Milirrpum was overturned by the Mabo decision twenty years on, but only in relation to title to land. The High Court vindicated, one might assume, Justice Blackburn's feeling ill at ease with the decision he was bound by precedent to reach in 1971. The judges did not, however, overturn Cooper v Stuart, preferring to say, as recorded in the headnote, that it 'was not followed'.
The impetus provided by the case of Sydney Williams in South Australia is crucial to the later deliberations of the Australian Law Reform Commission and to the story of the recognition of customary law generally.
R v Williams (1976) 14 SASR 1
During the course of this South Australian criminal trial, Justice Wells heard evidence that a taunt (in relation to customary secrets) by a woman with whom Williams (a Pitjantjatjara man) had been drinking led to her death at the hands of the accused. Williams was convicted of manslaughter. The provocation of the woman was sufficient to reduce murder to the lesser crime, said the court. Justice Wells decided not to sentence Williams to imprisonment if he agreed to submit himself to the customary penalties meted out by Aboriginal elders or those acting at their behest. Wells thus 'suspended' a two year custodial sentence on the proviso that the prisoner return to his lands for customary punishment. The sentencing judge later gave his reasons in correspondence with the Commission published a decade later.
The fact was that he had very little English; it would have been impossible for him to have communicated with the staff of the prison or with any fellow prisoners, or to have related to them in any way ... To condemn a tribal Aborigine to such a fate was something which I wished, if possible, to avoid. The question of punishment by the tribe was barely alluded to, as I recall it, in the Court and certainly no mention was made of what it was the tribal elders had in mind to do (reported in Australian Law Reform Commission 1986:353-4, referred to in Cunneen and Libesman, 1995:79).
Williams was later speared through the legs as required by the elders. Not coincidentally, in February 1977, the Australian Law Reform Commission was commissioned to determine
whether it would be desirable to apply either in whole or in part Aboriginal customary law to Aborigines, either generally or in particular areas or to those living in tribal areas only.
Its report entitled The Recognition of Aboriginal Customary Laws was released no fewer than nine years later, in 1986 (Australian Law Reform Commission 1986). It was 900 pages long, the nine year period being the longest in the Commission's history. Similarly the Northern Territory Legislative Assembly Committee on Constitutional Development (Northern Territory 1992) has undertaken a similar exercise in order to shape the laws of the Northern Territory as it approaches statehood. In the final analysis, both the ALRC and the CCD remained cautious, recommending a careful and piecemeal approach to any such recognition. The ALRC concluded that codification is not an appropriate form of recognition of customary law, nor is the exclusion of the general law desirable. Its conclusion was rarely challenged in the years that followed, until 1994.
The Walker Case
In a landmark case decided on 16 December 1994, the High Court dismissed Denis Walker's appeal against his conviction on assault and resisting arrest charges (Walker v New South Wales (1994) 69 ALJR 111), setting back any progress there may have been towards a Mabo-style claim for common law recognition of customary criminal law.1 Walker had claimed that he could not be guilty of a crime of assault because he was not accountable under Commonwealth or State criminal law. A member of the Bandjalung people and son of the poet the late Oodgeroo Noonuccal, Walker claimed that Australian parliaments did not have the power to make laws for Aboriginal Australians without their consent. The High Court in this case remained unmoved by Walker's counsel's submissions. (Then) Chief Justice Mason disagreed, maintaining that the concept of justice demanded that the same conduct received the same legal response regardless of the race of the person charged with an offence.
The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting. And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose (at 113).
There was no analogy, the former Chief Justice said, between an underlying native title and criminal law. Customary criminal law had been extinguished by general criminal statutes. He noted with approval the remarks of Gibbs CJ in Coe v Commonwealth of Australia (1979) 53 ALJR 403 at 408, that
the aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside.
Moreover he restated his comments in a later Coe case, Coe v Commonwealth of Australia (1993) 68 ALJR 110 that Mabo [No 2] is at odds with the notion
that there resides in the Aboriginal people a limited kind of sovereignty embraced in the notion that they are a 'domestic dependent nation' entitled to self-government ... or that as a free and independent people they are entitled to any rights and interests created or recognised by the laws of the Commonwealth, the State of New South Wales and the common law (at 115).
The Walker case has curtailed the expectations of those who thought that Mabo had opened a door on sovereignty generally. That door, rather, has been firmly shut (Pringle 1995:41), although an appeal is pending. This case is not an authority, however, for the proposition that no case will recognise customary law. The position is simply that recognition must, of legal necessity, be piecemeal and limited.
There have been a number of cases (in addition to the Williams case above), where customary law and practice has been applied, albeit in an ad hoc fashion, in the Australian legal system. The cases of Foster v Mountford and Rigby (1976) 14 ALR 71 and Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247 provide examples of cases where Northern Territory courts have acknowledged the secret nature of some ceremonies in granting applications for the suppression of evidence. A plaintiff's traditional status was acknowledged in determining damages in a negligence case in Roberts v Devereux (NT Supreme Court, unreported, 1982). Other examples include recognition of customary law for the purpose of providing 'ceremonial' leave, of protecting the privilege against self-incrimination, and of recognising provocation as a defence (Office of Indigenous Affairs, 1994).
Most recently, a case attracted the ABC 4 Corners program's attention. Wilson Jagamara Walker (Northern Territory Supreme Court, unreported February 1994), was convicted of manslaughter in Alice Springs. Pay-back was ordered by the trial judge, Chief Justice Martin, although allegedly in circumstances where it appeared that the judge failed to negotiate or consult with the victim's family at Yuendumu, and indeed, at the end of the day, the opportunity for pay-back had passed. This case illustrates, with respect to the judge, the errors that are possible when judges embrace the notion of customary law without requisite information and cultural knowledge.
There is quite a difference, too, between acknowledging traditional practices and granting customary law a status equal to that of the common law applying generally. The Denis Walker case does not prevent a sentence of pay-back where, in all the circumstances, the judge determines that such an outcome serves the administration of justice. It does, however, prevent pay-back being resurrected as a right, enshrined in some customary code, in the same fashion that native title was recognised in the Mabo case.
Legislating for Customary Law
There is, of course, no constitutional difficulty for Australian parliaments in legislating for customary law at State or federal level. One might notice immediately, however, that each of the following examples is issue-specific, that is, none attempts to put in place a whole new legislative system of customary law. Some such Acts that currently exist include the Aboriginal Communities Act (WA) 1979, by virtue of which the Council for Aboriginal Communities can make its own (implicitly customary) by-laws, and the Aboriginal Land Rights (Northern Territory) Act (Cth) 1976 which allows claims to be made by indigenous peoples to the Crown land in the Northern Territory on the basis of traditional concepts of ownership.
In South Australia both the Pitjantjatjara Land Rights Act (SA) 1981 and the Maralinga Tjarutja Land Rights Act (SA) 1984 create the title of 'customary assessor' who is in a position to report customs and traditions of the people concerned, and be recognised as having such authority. In all States, customary 'sites' sacred to their traditional owners are recognised in sacred site legislation. There are more than twenty Commonwealth, State and Territory enactments which purport to protect Aboriginal heritage sites and other property. The cornerstone is the Aboriginal and Torres Strait Islander Protection Act (Cth) 1984, available to applicants where State or Territory law is inadequate. While the legislation has its critics (Goldflam, 1995), it serves in no small measure to indicate that the law is capable of providing for the recognition of indigenous spiritual beliefs.
Australian child welfare legislation has been changed to ensure that the 'child placement principle' is in place. This principle places an obligation upon a government agency, be it involved in welfare or adoption, to give a preference in child placements to homes and families who fall within the child's cultural community (Office of Indigenous Affairs, 1994:26). In addition, there are some statutory formulae which recognise Aboriginal de facto unions for the purposes of parties to them receiving certain benefits (Wilkinson, 1995:25). They are found in s 7(1A) Family Provision Act (NT) 1980, s 4(3) Adoption of Children Act (SA) 1988 and s 4 of the Safety and Rehabilitation and Compensation Act (Cth) 1988. The first of these provides a good model definition, viz,
an Aboriginal who has entered into a relationship with another Aboriginal that is recognised as traditional marriage by the community or group to which either Aboriginal belongs is married to the other Aboriginal and all relationships shall be determined accordingly.
Why Recognise Customary Law?
There have been a number of reasons advanced for the recognition of some customary law in the Australian legal framework. The Federal Minister, at a Justice Forum convened 23 August 1994 (Office of Indigenous Affairs, 1994:iii) stated his belief that
Aboriginal and Torres Strait Islander customary law shall be recognised and applied to the extent that it continues to be traditionally practised by indigenous people provided that such application by the courts shall be reasonable and in accordance with Australia's international obligations.
More overt recognition of customary law (by legislation or by a Mabo-style challenge to the High Court to gain common law recognition) would, it is said,
deg. push further the move towards reconciliation (by some kind of treaty or otherwise) identified by the 1991 Constitutional Centenary Conference and foreshadowed in the Council for Aboriginal Reconciliation Act (Cth) 1991 (Pearson, 1993, 1995; Sarre 1994).
deg. help bring Australia into line with our international undertakings under several UN human rights conventions and covenants.2 There are at least three covenants that could apply to official recognition of some aspects of customary or traditional law. Australia signed the International Convention on the Elimination of All Forms of Racial Discrimination on 13 October 1966, and both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights on 18 December 1972. Each of these covenants commits Australia to create domestic laws that incorporate the spirit and intent of the international agreements. In particular, Article 1 of the second of the above-listed covenants declaring that peoples of the world have the right of self-determination, an issue pursued by the UN Working Group on Indigenous Populations (WGIP), created in 1982.3 Specifically the ICCPR protects the right of minorities to prevent any challenge to their language and culture. Furthermore, the Convention on the Rights of the Child, signed for Australia 22 August 1990, commits Australia to adopt the 'child placement principle' in adoption policy (Wilkinson, 1994), discussed supra.
deg. help bring into play the recommendations of the Deaths in Custody Report (specifically 219) which identified a lack of recognition of customary law as one reason for the alienation from the criminal justice system of indigenous Australians.
deg. help bring into play a reduction of contact between the criminal justice system and Aboriginal people. Currently there are gross disparities between the numbers of Aboriginal people in the general population and the numbers in the prison and police cell populations, for example.
deg. bring about safer and less violent communities, given the evidence that many 'customary' communities have very low levels of violence and criminality generally. Indeed, a recent editorial in a respected criminal law journal made the following plea:
Extinguishment and replacement of native laws with a European-based legal system stemmed from the imperialistic notions of monoculturalism and racism of a past era. The effect on Aboriginal communities was devastating: the demise of their spiritual and legal restraints tore at the basic fabric of these communities and drastically eroded the security, cultural integrity and self-esteem of their members. This sense of loss is comparable to that experienced by Aborigines through annexation of their lands. It is a loss which has carried through to the present day, manifesting itself in the vast over-representation of Aboriginal offenders in the criminal justice system and in Aboriginal disenchantment with the system (Editorial, 1994:196).
deg. assist the process of HIV/AIDS-related law reform, given that under the Second National HIV/AIDS Strategy, HIV/AIDS education and prevention for Aboriginal and Torres Strait Islander communities are to be given priority. It is recognised that Aboriginal customary law, in so far as it applies in remote areas, needs customisation and acceptance so it may be utilised in AIDS prevention methods.
The Difficulties and Unanswered Questions Concerning Recognition
There are, however, a number of reasons put forward to suggest that policy-makers should move cautiously in this area and not be too hasty to advance this process without serious thought and widespread consultation. The reasons often suggested for this caution include:
deg. There are different customary regions in Australia. Not only are there differences in geography, there are also many differing degrees of commitment to particular traditional laws and customs. How does a system of recognition take into account the plethora of cultural associations and customary adherence?
deg. Traditions are not frozen in time, but are dynamic. Any suggestion that traditional laws be preserved is based upon a dated view of cultural practices and procedures which suggests that they are somehow immutable and static constructs.
deg. There will be some circumstances where customary law may offend other human rights and the laws based upon those rights. For example, what if customary law allows women to be beaten if they observe men's secrets? Could not such a rule be in defiance of Australia's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (in force in Australia since 27 August 1983)? Could not one describe spearing required in some payback punishments as an act of torture or inhuman punishment forbidden by Articles 21 and 22 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (in force in Australia since 7 September 1989)? What if customary law permitted capital punishment, notwithstanding its abolition in every jurisdiction in Australia (Raffaele, 1994:20)? What if customary law allows children to be married at an age less than the age prescribed in Australian law? Child betrothals, non-consensual marriages and polygamous marriages are not only contrary to the Marriage Act (Cth) 1961 but the common law and public policy. The first two also breach Australia's international obligations under the international Conventions previously cited.
deg. It has been said that close analysis of customary laws (where that be possible) threatens the integrity of those laws. Some Aboriginal groups claim that any analysis of customary law by outsiders has the potential to destroy not only the laws but the self-management principles currently espoused by policy-makers. Of course this is already a contentious issue by virtue of the requirement of scrutiny by those charged with the responsibility of determining the continuation of custom for the proof of native title.
The courts have not yet conclusively determined at what stage and in what circumstances a group has sufficiently abandoned their traditional law and custom so that native title is said to be extinguished. In each case the question will require a detailed factual investigation about the nature of traditional law and custom and the history of observance of the law and custom. The court will assess the question of abandonment of native title at the clan or group level, as opposed to the individual level (Fitzgerald, 1995:7).
It is also made contentious by the challenge to customary law from its own practitioners. According to the evidence before Commissioner Elliott Johnston, Aboriginal law is 'hard work' (Royal Commission into Aboriginal Deaths in Custody, 1991:361, Brennan, 1993:250).
deg. It raises difficult legal questions. Can there be two sets of criminal laws (and defences) sitting side by side? Should the requirement of mens rea ever be compromised? Should the criminal law recognise a customary offence even if it is not a general law offence (eg calling out the names of the dead), or ignore a customary offence notwithstanding that it is a breach of the general law (eg private 'payback' assaults)? Should general law and customary law sentencing practices be distinct and different, or indeed cumulative? (eg McCorquodale, 1984:271; Roeger, 1994).4 Can the sentence be set lighter if there be a possibility of a customary punishment also (refer R v Kiltie (1974) 9 SASR 452 which found that this should not occur)?
The Future of Customary Law as Separate Law
The federal Attorney-General's department, in a report released in July 1994, opposes many of the ALRC's 1986 proposals.
Given that Australia is a multi-cultural society where the customary laws and traditions of many minorities exist outside the Australian legal system, to provide legislative recognition to the customary laws of one minority group would be highly inflammatory (reported in The Age, 4/11/94:2).
Even in 1986, the Australian Law Reform Commission did not advocate a system where customary laws operated to the exclusion of the general law, nor did they suggest codification of customary law. They recommended, however, certain limited changes. For example, they recommended that polygamous and customary marriages should be legally recognised for the purpose of determining adoption rights, property distribution, child welfare, fostering, accident compensation, intestacy, superannuation, and criminal injuries compensation.
The situation, then, appears to be that where possible, customary 'law' and practice should be recognised where it does not offend general law and where justice is best served thereby. To that end, for example, family 'conferencing' as a juvenile justice option, recognises that indigenous solutions to juvenile offending can be employed successfully. Equally, however, payback torture or activities where death may result should not be embraced. Traditional distribution of property could apply in civil cases where, in all the circumstances, justice to all parties results, particularly given 'the usual and consistent conclusion to community problems was one of peaceful discussion and sensitive resolution' (Kirby, 1980:198). Equally, however, child betrothals should not be countenanced nor recognised.
Thus, there can be no 'hard and fast' approach. In any agenda towards self-government, this needs to be remembered (Brennan, 1993).
Short of the extremes of customary law, there is much room for a more flexible and sensitive5 legal approach to its adoption than has hitherto been the case.6 Some commentators see this as an important imperative for governments, business and industry in order
to give legitimacy to our traditional systems and incorporate an understanding of our Indigenous laws and customs into their world views (Dodson, 1995:2).
The courts and the parliaments, however, appear to be saying that this is one area where an entirely 'open slather' approach is inappropriate. I agree. There is little to be gained in pushing an agenda for the wholesale recognition of many aspects of customary law (or indeed self-determination) if the result is further divisions between indigenous and non-indigenous Australians. For, as Noel Pearson points out, there is no other choice than legal and social cohesion.
The futures of black and white Australians are inescapably enmeshed, no matter what fantasies some of us might harbour. This is not to say assimilation, but something more intelligent and necessary: unity through diversity. Black and white Australians cannot afford cynicism because our future will be a shared one (Pearson, 1995:23).
Recognition of customary law is designed, in the end, for the cohesion of the Australian nation. At the first sign of this cohesion being compromised by the courts or parliaments embracing aspects of customary law, any moves towards reform of or extension to those specific laws should be seriously questioned or, indeed, abandoned.
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1 While there has been some extension and clarification of the legal principles relating to off-shore waters and hunting and fishing rights (eg. Jackson 1995:27; Behrendt 1995:11, Mason v Tritton and Anor (1994) CA 40620/93, NSW Court of Appeal, 30 August 1994) and intellectual property (Milpurrurru v Indofurn, Federal Court, DG 4 of 1993, 13 December 1994), the extensions generally to the Mabo principles have been cautious and narrow, and certainly not concerning customary law generally.
2 As the High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 69 ALJR 1 decided, Australia's ratification of an international convention could give rise to a legitimate expectation that a person who is exercising a statutory discretion will exercise that discretion in accordance with the terms of the convention. There are moves afoot in government circles to legislate to limit the applicability of Teoh although federal legislation has stalled and lies dormant into 1996.
3 By 1992, at the end of its tenth session, the WGIP declared that it was then represented by 42 member States and was piecing together (since 1985) a draft declaration on the rights of indigenous peoples (Pritchard 1993). By August 1993, the Draft, now complete, was presented to the UN's 45th session (Iorns 1993, Cunneen and Libesman 1995:237). It declared the right of the world's indigenous peoples to have their specific characteristics respected in the legal and political systems of the countries which are party to the conventions. The work of this group has not yet been translated into a UN convention or covenant, and appears to have been frustrated by the thorny issue of self-determination (a much wider question, refer Brennan 1993: 253) and the associated 'word games' that are played by the protagonists in the debate (Brennan 1993:262).
4 Refer Mamarika v Svikart (unreported, Martin CJ, 23 December 1993), Joshua v Thomson (unreported, Kearney J, 27 May 1994), Wanambi v Thompson (unreported, Kearney J, 29 July 1994), Supreme Court of the NT.
5 For a useful example of insensitivity, one need look no further than the Hindmarsh Island (Kumarangk) Bridge Royal Commission in Adelaide which began taking evidence from 24 July 1995 and which presented its findings in December 1995. The Commission was asked by the Liberal State government to investigate whether the claim of secret Ngarrindjeri women's business (employed to stop the proposed Hindmarsh Island bridge) was 'a fabrication and if so the circumstances relating to such a fabrication, the extent of such fabrication, and the purpose of such a fabrication'. The perpetrators of the inquiry pursued their task by questioning the traditional beliefs in a manner that was infused by issues relating less to law and more to politics, economics and face-saving. The Royal Commissioner found, inter alia, that the claims of secret women's business were, indeed, fabricated. Refer Aboriginal Legal Rights Movement v SA (Full Court, 25/8/95, S5225.1 regarding the court's decision re the legitimacy of the Royal Commission).
6 It is difficult to imagine a future Mabo-style claim for the rights of traditional or customary law (other than land law, hunting and fishing rights etc) to be guaranteed by the common law (as opposed to legislatively). A person would have to have been denied a benefit or protection which would otherwise have been in accordance with customary law (applying to that person), and furthermore it would have to have been a benefit or protection which is non-discriminatory and does not offend Australia's human rights undertakings. Moreover, the person would have to have been subject to a tradition that had not altered since 1788.