What Is Aboriginal Customary Law - Essay Example

What is Aboriginal Customary Law? To what extent does it still operate today? Introduction Many indigenous, traditional and local communities are identified by customary laws. Different aspects of lives of these communities are addressed by these laws. These laws define the responsibilities and rights of different members of the communities in relation to culture, life and world view, (Michael Walsh, 2008). They may be related to how natural resources could be used and accessed, land rights and obligations, the inheritance of property, how spiritual life is conducted, how cultural heritage is maintained and the systems of knowledge that are in place. Customary laws help in defining and characterizing the identity of the said community. In some communities these laws constitute the laws of the community and they are held in great status, (Blagg. 2008). This paper discusses aboriginal customary laws and how they affect their lives; that is, dispute resolution and punishment administered. It takes a critical look at the applicability of these laws today. Furthermore, the paper looks at the future of these laws and recognition of these laws, (Ginsburg and Myers, 2006). Aboriginal customary laws According to Law Reform Commission of Western Australia (2006), aboriginal society does not have an institutional government system. It also lacks a body responsible for making laws and a hierarchical court. The customs of aboriginals have been passed and evolved from generation to generation as part of oral culture. Due to this, definition of aboriginal customary law using terms which are non-indigenous is very difficult. In spite this, it is acknowledged that there exists a body of rules, traditions and values from which traditional standards were established that are followed up to date. These laws exist in different forms today, (Mulqueeny, 1993). Under aboriginal customary law, standards of social behaviour, binding rules and sacred matters are indistinguishable. All of these are seen as the law. In addition, the aboriginal customary law has no distinct differences between the criminal law and civil law matters in the understanding of the general law. However, the customary laws consist of distinct private and public wrongs, (Blagg. 2008). Some authors have categorized the public matters as criminal law while the private matters have been branded civil law. In spite these categorizations, the authors note that the boundaries that exist between the two laws are not in most cases clear. Under the aboriginal customary law breaches of sacred law, murder by magic, sacrilege or incest constitutes public wrongs. On other hand, adultery and homicide wounding constitutes private wrongs. The difference in these two wrongs lies in the way resolutions to these disputes are made. Elders are involved actively in resolution of public disputes. On the other hand, resolution of private wrongs involves the harmed person and their relevant kin who are responsible for determining the appropriate response, (Cregan, Cuthbert, Lowish, Muldoon, and Spark, 2002). The concept of responsibility between breach of Australian criminal law and aboriginal customary laws differs greatly. Under Australian law concepts such as recklessness, accident and intention which constitute fault are core and indication of criminal responsibility. Contrary to this, aboriginal customary law sometimes apportions responsibility while considering these issues and their primary focus is usually on the cause of the issue at hand. Liability is usually strict in many cases under the aboriginal customary law. Under the aboriginal customary law, the reason behind your actions is not usually important. The concept of causation between the Australian laws also differs from that of aboriginal customary law. Whereas the Australian law considers causation in the mechanical sense, aboriginal customary law considers indirect social cause. Responsibility of resolving disputes under the aboriginal customary laws It is not clear under the aboriginal customary on who in particular had the responsibility of resolving disputes. Law and order maintenance and dispute resolution usually varies with the nature of the dispute, in addition to the concerned community. Some researchers have noted that there existed an informal council of initiated men. These men dealt with matters of religion and calling of meeting which were used to resolve grievances. The meetings could not end until a consensus had been struck to deal with the grievance in question. Once a consensus had been struck, punishment was administered in form of physical sanctions or public denigration. The authors also document that in matters which were non-religious, family leader and kinship determined what was to take place, (Cregan, Cuthbert, Lowish, Muldoon, and Spark, 2002). Furthermore, the family of the offender and the offended were usually involved in negotiating the outcome and the relationship of the kin and who was to carry out the punishment. Thus order under aboriginal customary laws seems to result from self regulation and agreements between the concerned family heads, (Don. 1994). Whenever a dispute arises the way individual responds is determined by kinship. Under the aboriginal customary law failure to respond appropriately could result in further transgression, (Blagg. 2008). Under the aboriginal customary law, elders were actively involved in serious matters such as breach of sacred law. In addition, the elders were called upon to intervene in resolving disputes which could not be resolved by a family or a kin group. In most cases the advice given by the elders was adhered to and no one could question it. Women also played a vital role in resolving disputes. Under the aboriginal customary law women status is comparable and equal to that of men. They are considered custodians of family secrets and law. The aboriginal women are the most powerful negotiators and conciliators. They are also involved in dissemination of punishments, (Noel, 1995). Resolution of disputes under aboriginal customary laws As found out by ALRC, aboriginal communities have methods for social control and resolving problems. In most cases discussions or meetings are usually held among the aboriginal communities in Australia to resolve grievances and disputes. These meetings were usually held during ceremonial times at which everyone was obliged not to fight. The method used to resolve the dispute usually depended on the nature of the dispute, that is, whether it is a private or public wrong. In spite this; a private grievance could sometimes become a public wrong if the offended person declared it publicly or withdrew from an important activity. As per the ALRC report, Strelley community conducted regular meetings which were aimed at resolving disputes and making communal decisions. The meetings usually involved ten men who sat in a circle with the offender sitting in the centre. The committee was authorized to apprehend the offender in spite his community background to face the committee. The committee could only act when commissioned by the community, (Michael Walsh, 2008). However, the ALRC noted that most of methods used to resolve disputes among the aboriginals had been affected by the Australian law and the non-aboriginals. In spite this influence, the aboriginal customary law was found to be resilient and able to adapt to the circumstances which are ever changing, (Don. 1994). The most significant feature of resolution of disputes among aboriginals is the restoration of peace among the parties involved, (Ginsburg and Myers, 2006). There is usually a limit to permitted revenge under the aboriginal customary laws. Punishment dissemination usually marks the end of the matter. However, if the punishment is beyond the limits due to the desire to revenge this may culminate in further conflict which is an indication of breakdown in the traditional law, (McCorquodale, 1984). Another feature of aboriginal customary law is the concept of collective responsibilities and rights. Thus, among aboriginals conflict resolutions usually involve communities and families, (Don. 1995). Under this law kinship relationships determine the rights and responsibilities of a person to one another in addition to impacting on the way the dispute is resolved. The punishment to be inflicted on the offender is usually determined by families since the aboriginal law demands that the family involved are satisfied when a wrong is done, (Broadhurst, Maller, Maller, and Duffecy, 1988). Under the aboriginal customary law, offences are either breaches of sacred law or offences against other people or property. There is no clear boundary between these two since both aspects may sometimes be covered by some offences, (Michael Walsh, 2008). There exist kinship avoidance rules among the aboriginals a breach of which results in a private wrong. Other private wrongs include incest, murder, violence, adultery, insulting behaviour, elopement and breach of taboo. Omission offences also exist among aboriginals. These include refusal to make gifts or educate relatives and physical neglect of relatives. Punishments under the aboriginal customary laws Sanctions for certain behaviour are usually imposed as a punishment among aboriginals. These are usually done in public through consensus of the family and the community. The public administration of punishment made many members of the aboriginal community to comply with the traditional law. Punishment under aboriginal customary law included death, sorcery and supernatural punishment, physical punishments, banishment or exile, ridicule and shaming and compensation, (Broadhurst, Maller, Maller, and Duffecy, 1988). Death as a punishment was either done directly or through sorcery. Some were even denied mortuary rites. As a consequence of the Australian law, death is no longer administered as a punishment in aboriginal communities. Supernatural punishments were incorporated in the customary law to control certain behaviour. Sorcery punishment included insanity caused by non-human agency, (Ginsburg and Myers, 2006). However, other aboriginal communities considered sorcery as a violation of customary law. It is noted by various researchers that the fear of sorcery was used as a powerful legal sanction and a form of social control. This believe in sorcery as noted by the ALRC is still being used and continue to influence the behavior of aboriginals. Physical punishment under aboriginal customary law involved spearing and beatings. People involved in offences such as murder, elopement, personal injury and adultery underwent formal spearing in the thigh. This does not result in permanent injury of the offender. The physical punishments are usually used to resolve disputes and restore peace among the offended and the offender. Banishment or exile was one of the extremely harsh punishments and it was not embraced by all aboriginal communities. The exiles included temporary exile to other places or internal exile where one was restricted from going to certain places, (Michael Walsh, 2008). Quarrels or disputes were usually prevented using ridicule among the aboriginal communities. However, sometimes the ridicule could provoke more trouble. Offences where ridicule was used included neglect of duties and responsibilities. Public ridicule and shaming is still being used among the aboriginals as a form of punishment as reported by the ALRC. This is used to maintain law and order in the community. Compensation as a form of punishment was not so common but was being used in offences involving death. This is still being used but has been modified to include informal fines, (Cregan, Cuthbert, Lowish, Muldoon, and Spark, 2002). The state of aboriginal customary laws today The existence of a system of law that is recognizable has been identified in aboriginal society by the Australian courts. The displacement of many aboriginals from their ancestral lands has resulted in variation to which the customary law governs them and thus there is a variation in these customary laws from community to community. The aboriginal customary laws cover various aspects of life. These include land, marriage, and custody issues, adoption of children and child protection and care, (Ginsburg and Myers, 2006). Marriage Under the aboriginals culture a fourteen year old person is an adult woman or man. Their customary law includes “promised wives”. This prevents inter family marriages. It also provides for a system of land custodianship. This also promotes cohesiveness among community members, (Raffaele, 1994). Traditional marriage among the aboriginals in most cases involved an older man marrying a young girl. This was to ensure that the children begotten in the marriage and the woman are taken care of well by the mature man who could protect them in addition to providing for them. However, the first wife of the man could be alder than the man. Marriage involved public cohabiting of a man and a woman with both parties taking on marital responsibilities which included sexual relations. These unions are hedged by taboos such as avoidance of in-laws. In the marriage there are complex obligations and responsibilities of the kin to the parties. Any person who violates or deviates from the contract of marriage usually attracts varied attention from different people, (Michael Walsh, 2008). Marriage was usually cemented by the birth of the first child. Among some communities polygamy is common while in others it is a rare occurrence or non-existence. Divorce among these communities was seen through the end of cohabitation of the parties involved, (Don. 1995). Custody issues Children whose parents are deceased are left under the care of close extended family members such as aunts, uncles or grandmothers among the aboriginal community. When custody is being decided, the child’s best interests are usually put into consideration, (Roeger, 1994). Adoption The concept adoption is not recognized by the aboriginals the way it is understood among the white community. However, there are special kinds of care which require protection. Thus when placing aboriginal children under substitute care they should be placed within their own community and culture, (Cregan, Cuthbert, Lowish, Muldoon, and Spark, 2002). Children protection and care The care and protection of abused children among aboriginals is under the child’s extended family. The decisions are usually made by the aboriginal community members. Under customary practice of aboriginals the care and physical attention of young children is the responsibility of their biological parents. Once the children are old enough, the care and attention of the children is a responsibility of all community members within the kin network, (Michael Walsh, 2008). Integration of aboriginal customary laws into the legal systems Traditional law is not recognized by the Australian common law. However, it permits the use of traditional law in certain situations. Australian legislations also recognize some specific aboriginal customary law. Aboriginal customary laws have been applied gradually in the criminal laws of Australia especially sentencing. The use and recognition of these aboriginal customary laws, which includes a body of customs, rules and practices, in criminal laws is aimed at building peace and restoration of order and harmony among aboriginal communities, (Broadhurst, Maller, Maller, and Duffecy, 1988). In spite this recognition, judges have been in consistent claim that they do not condone or sanction the infliction of harm which is done deliberately as “payback”. Among the aboriginal communities “payback” is a form of punishment to those who breach customary laws. This includes spearing, restitution to the victim or shaming. Among the communities, payback is seen as a method of atonement or cleansing and restoring relationship among members of the community rather than an act of revenge. The judges involved in these cases usually navigate issues depending on the acceptable evidence of the customary law and the availability of experts on customary laws in question, (Don. 1994). In addition, the conceptualization and practical applicability of the aboriginal customary laws in relation to white laws is challenging. Thus judges are usually cautious when creating norms and standard which are distinct and applicable to the conduct of aboriginals. The recognition of the aboriginal customary laws has given them (aboriginal communities) more involvement in the process of sentencing. However, it has also bound them to the white legal system. This has yielded a pluralism legal system which is weak that recognizes aboriginal customary laws informally. Thus, the aboriginal customary laws are used as an alternative legal authority which is scrutinized by the white legal authority, (Ginsburg and Myers, 2006). The future of aboriginal customary laws The future of the aboriginal law is bleak. This is because of several reasons. First, Australian politicians want the customary law to be abolished. Second, the media fraternity in Australia is also involved in demonizing the customary law. In addition, part of the population has in recent tended to denigrate or ignore the custom law. Furthermore, there is a school of thought which advocate for the abandonment of old ways. They argue that the adoption of English language, the rule of law and capitalist lifestyles will help the indigenous people to prosper and survive. The inferiority status accorded to the customary law in favour of western legal style is also aiding in making the customary laws unpopular, (Michael Walsh, 2008). However, there is still a small percentage of the population which understands the customary law and therefore cherishes it in addition to living it. The legal system has been involved in making some efforts toward the recognition of the customary law. Recognition of aboriginal custom laws Before 1986 many inquiries had been commissioned to look into the aboriginal customary law. The present analysis of the aboriginal law however began in 1986 following a report of the Australian law reform commission (ALRC). The report was titled “The Recognition of Aboriginal Customary Laws”. The report entailed recommendation concerning the ways that the aboriginal customary laws could be included in the general law in Australia. The recommendations were to be implemented by the Commonwealth, State and territorial governments in relation to matters within their areas of responsibility. Before then, the recognition of aboriginal customary laws in courts was incomplete and uncoordinated, (Broadhurst, Maller, Maller, and Duffecy, 1988). The recommendations of ALRC were based on various underlying principles. First was that the recognition of aboriginal customary law by Australian legal system needed appropriate ways. Second was that this recognition was supposed to occur in tandem with the general framework of the Australian law. In addition, during recognition of these laws, no new or separate structures were supposed to be created. Finally, the recognition was not to involve direct enforcement or codification or exclusion of the Australian general law. The recommendation of the report covered areas such as family and marriage matters, child fostering, custody and adoption, property distribution on death, criminal law and aboriginal communities’ local justice mechanisms in addition to rights of fishing, hunting and gathering, (Blagg. 2008). Marriage in Australia is governed by Marriage act. According to ALRC, four different ways could be used to recognize traditional marriage. First was through de facto recognition. Second, traditional marriages could be recognized by underwriting or enforcing rules related to traditional marriage, (Don. 1995). The traditional marriage could also be equated to Marriage act marriage in all ways. Finally, traditional marriage could be recognized through functional recognition. Functional recognition was aimed at avoiding situations where traditional marriage rules infringe on basic human rights, (Cregan, Cuthbert, Lowish, Muldoon, and Spark, 2002). De facto recognition is in accordance to the De facto relationship Act of 1991. De facto partners are persons who have lived together as husband and wife on bona fide domestic basis even though not legally married. Thus the recognition of traditional aboriginal marriages is seen as a de facto relationship under Australian legal system. This act is able to address all problems that may arise in the event of a traditional marriage. The ALRC made several proposals concerning marriage. First, the traditional marriages were supposed to be recognized wholly whether polygamous or monogamous. Second, the commission proposed that there should be an age limit for traditional marriages. Third the recommendations were to be applied to aboriginal and non-aboriginal persons who engage in traditional marriages. Finally, the commission proposed that there was no need of registering traditional marriages but communities could operate such marriage registers. For instance in the Northern Territory such traditional marriages are recognized and some of the disadvantages related to failure to recognize such marriages have significantly reduced. The Northern Territory recognizes these traditional marriages through de facto legislation. In addition, the Commonwealth Department of Social Security has implemented the ALRC recommendations and hence members of traditional marriages receive benefits similar to those paid to married partners, (Cregan, Cuthbert, Lowish, Muldoon, and Spark, 2002). Furthermore, the Northern Territory has set out traditional laws in relation to promised marriages. In tandem with the general law to avoid situations where one is coerced to marry without his consent, promised marriages are not recognized. In addition marriage to underage individuals is opposed in the Northern Territory, (Ginsburg and Myers, 2006). However, some legislations of Northern Territory recognize polygamous traditional marriages. Why there was need to recognize aboriginal customary law I accordance to ALRC The recognition of the aboriginal laws was expected to promote reconciliation process between the aboriginal and non-aboriginal populations. Furthermore, the commission noted that most conducts of aboriginal people were governed by their customary laws and therefore failure to recognize them in the legal system could result in injustice in certain situations. In addition, it was noted that the prevailing legal system at the time had failed in many instances to deal effectively with the disputes of aboriginals and that there existed disproportionate contact with legal system by the aboriginals. Moreover, the commission argued that order could be efficiently maintained through traditional authority within the aboriginal communities and this was seen to be cost effective. The commission also noted that various courts were recognizing the aboriginal customary laws and this needed to be formalized as most of the courts were acting within their discretionary powers. This was expected to clarify the laws in accordance the aboriginal customary laws. Another reason as proposed by the commission was that failing to recognize the aboriginal customary laws could prevent self determination and management which is more appropriate than integration and assimilation principles. The recognition of the laws was expected to promote the reputation and standing of Australia, (Cregan, Cuthbert, Lowish, Muldoon, and Spark, 2002). Some reasons identified by the ALRC arguing against the recognition of the aboriginal customary laws Some punishments and rules may be incorporated by the customary that are not acceptable to non-aboriginal Australian communities. The commission recognized that some of the customary law aspects were secretive and that disclosures of such confidential issues were against the judicial function within the Australian legal systems. There was argument that the aboriginals could not be in control of their customary laws ones they were incorporated in the Australian general legal system, (Michael Walsh, 2008). In addition, the commission noted that incorporation of the aboriginal customary laws into the general legal system could not protect the aboriginal women adequately and therefore some of them would prefer the general legal system rather than the aboriginal customary laws. Furthermore, the recognition was seen as a way of creating two laws within Australia. The commission also realized that the aboriginal customary laws were no longer relevant to all the aboriginals thus the general legal system could be preferred by some of these people. Finally, the commission noted that for the laws to be recognized they were to be applied to aborigines who strictly prophecy the law, (Broadhurst, Maller, Maller, and Duffecy, 1988). Appropriate ways that the aboriginal customary laws could be incorporated in the general Australian law Several options were identified that could result in formal recognition of aboriginal customary law. First, the recognition needed to be done through statutory codification or reference to the laws in general forms without giving detailed information. This is aimed at protecting sacred sites. In addition the recognition should exclude the customary law from general law. This could allow independent regulation of customary law through tribal courts which are separate. Furthermore, the recognition process should involve translation of concepts of the customary law into concepts which are understandable in the general criminal law. Moreover the recognition should involve accommodation or adjustment of the customary law by the general criminal law while sentencing victims. The ALRC approach was general and involved recognition by reference to Australian law that was to reduce injustice if the customary law was not recognized. The adoption of the ALRC recommendations varies within different jurisdictions in Australia. For instance, the 2003 draft constitution of the Northern Territory recognized customary law. It was proposed that the customary law and the common law were to run in tandem and in complementary manner without discrimination, (Broadhurst, Maller, Maller, and Duffecy, 1988). The implementation and enforcement of the customary laws were not to be done through officers and institutions of the government to prevent unfair consequences. The two forms of law were expected to promote mutuality in addition to reciprocity within a single constitutional framework. This was to strengthen the aboriginal society. The principles which were to be used for recognition of the aboriginal customary law in Northern Territory were proposed in 1996. The process was to involve recognition of the similarities between the aboriginal customary laws and the legal system, (Michael Walsh, 2008). The differences were then to be negotiated to allow creation of a synthesis between the two systems. Second, the process was to be driven from clan level then at regional level and finally at Territory level. This was to involve negotiation and decision making to address the differences that exist between different aboriginal communities and their customary laws. Finally, the process would not condone any matters that breached the International Human Rights Treaty since Australia was a signatory. Forms through which aboriginal customary laws could be recognized According to ALRC recommendations, the aboriginal customary laws could be recognized through functional recognition (reconciliatory recognition and affirmative recognition) or constitutional recognition. Functional recognition was the most favoured form of recognition by the commission. This involves recognition of the aboriginal customary law for specific purposes in specified areas. This method of recognition allows judicial, legislative, constitutional and administrative recognition of the customary laws through either affirmative or reconciliatory recognition. Affirmative recognition is aimed at empowering the aboriginal people, resolution of injustice and problems caused by lack of recognition of the customary law by the legal system of Australia and reduction of disadvantage. This recognition could be implemented through statutory provisions and guidelines which require the government and the courts to consider aboriginal customary laws where applicable while exercising their duties. It could also involve adoption of whole of government approach to deliver services to aboriginals. Models of self governance could also be introduced. Existing cultural biases could also be recognized and removed. This could also involve recognition of aboriginal marriages and empowering the elders to be active in justice administration. Reconciliation recognition is aimed at reconciling the aboriginals and the non-aboriginals. Constitutional recognition could involve acknowledgement of the fact that aboriginals were the original inhabitants of Australia and recognition of their customary laws as sources of law in the constitution, (Cregan, Cuthbert, Lowish, Muldoon, and Spark, 2002). Customary aboriginal law in Canada The aboriginals are the original inhabitants of Canada. In spite this; their voting rights were withheld by the colonialists for 1872 and this was restored in 1960. The aboriginal customary law in Canada has a foundation in the constitution. It therefore has an increasing influence on the people’s lives, (Don. 1994). The Canadian constitution incorporated the rights of aboriginal in 1982. Significant cases have been decided before courts based on these rights. Many aboriginal people have continued to assert sovereignty in Canada in accordance to their customary laws. In 1996 the Royal commission on aboriginal people noted that aboriginal customary laws shared several characteristics. First they were unwritten and were passed on from generation to generation through precept and example. Most of these laws were noted to be in continuous evolution. In addition, tribal or band territories consisted of vast lands which was considered communal and was shared among the members equally. Under these customary laws no one was expected to exclusively own land as a private property. The aboriginals also had land tenure systems, (Michael Walsh, 2008). Courts in Canada have been applying aboriginal customary laws as part of common law on various occasions. The Canadian law recognizes institutions, properties and laws of the aboriginals, (Robert, 1988). However, difficulties still exists in the determination of appropriate aboriginal customary law for specific case in question. This is because aboriginal customary laws are unwritten. Thus most aboriginal rights cases are based on oral history. For instance, there was a breakthrough in a land case involving aboriginal in which the supreme court of Canada used oral evidence as a prove that the claimant was the owner of the land in question, (Broadhurst, Maller, Maller, and Duffecy, 1988). The variation of customary laws from group to group there is no comprehensive definition of customary laws and practices. Thus the applicability and use of these laws require mechanisms such as recorded precedent, judicial notice, ethnography, learned treatises and expert testimony. Individual treaties on laws affecting the aboriginals are in existence in Canada. Dispute resolution according to Canadian aboriginal customary laws relies on consensus. It also emphasizes communal rather than individualism, (Ginsburg and Myers, 2006). Conclusion Many aboriginal communities continue to practice and embrace their customary laws today. The demonization of their laws by the media and politicians has not made them abandon these laws. Some of the aboriginal customary laws are good and some courts have been using them informally in the process of sentencing the victims. This relates to family issues such as adoption, care and protection of children, marriage and other conflicts, (Don. 1995). In view of this an ALRC commission carried out research on the aboriginal customary laws and made several recommendations which have been used by various states such as the Northern Territory to recognize some of these aboriginal customary laws when resolving disputes in which aboriginal individuals are involved. According to the ALRC recommendation, the aboriginal customary laws could be recognized through functional recognition (reconciliatory recognition and affirmative recognition) or constitutional recognition. The fact that the aboriginal customary laws have been incorporated in the Canadian constitution and are being used to resolve many court cases is a good sign for the recognition of these customs in Australia. This will improve the severed relations between the aboriginals and the non-aboriginals in Australia, (Cregan, Cuthbert, Lowish, Muldoon, and Spark, 2002). Reference: Roderick G. Broadhurst, Ross A. Maller, Maxwell G. Maller, and Jennifer Duffecy. “Aboriginal and Nonaboriginal Recidivism in Western Australia”: A Failure Rate Analysis: Journal of Research in Crime and Delinquency, Feb 1988; 25: 83 - 108. Kate A. Cregan, Denise Cuthbert, Susan Lowish, Paul Muldoon, and Ceridwen Spark. “Aboriginal Identity, Culture and Art.” Years Work Crit Cult Theory, Jan 2002; 9: 239 - 302. Michael Walsh. "Which Way?": Difficult Options for Vulnerable Witnesses in Australian Aboriginal Land Claim and Native Title Cases. Journal of English Linguistics, Sep 2008; 36: 239 - 265. 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