Respect and Equality as Fundamental Reasons for Recognition of Customary Laws - Essay Example

Customary Laws in Northern Territory Aboriginal Communities Customer Inserts His/her Name Customer Inserts Name of Tutor Customer Inserts Grade/Course (Date) Introduction Aboriginal people have been in Australia for about 40,000 years. By the time the colonialists arrived from Britain there was no Aboriginal state since Australia comprised of diverse cultural and linguistic groups occupying distinct areas. The Aboriginal population was reduced during the colonial settlement due to conflicts with settlers, introduction of diseases and alcohol1.The customs and traditions of The Aborigines who survived were either suppressed or destroyed. The Aborigines had no title to land under British colonial law and violence was used to silence them if they resisted encroachment of their land. The Aborigines we retreated as sub-human, primitive and uncivilized. Aborigines were settled in reserves and they were prevented from interacting or interbreeding with other racial groups. Most of their civil rights including the right to marry were taken away or limited. They were prevented from continuing with practice of their customs and traditional ways of life2.Their movement was regulated and so was their employment. Half-caste children were forcefully taken away from their parents and assimilated into The European way of life. The main objective of the policy of assimilation was to get rid of Aboriginal cultural values and traditions. The underlying impression was that Aborigines could only achieve equality by losing their identity. The Aborigines are a substantial minority in The Northern Territory since they constitute about 28.8% of the entire population. Non-aborigines exceed Aborigines in the urban centres but outside the urban centres, the Aborigines exceed the Non-Aborigines. Customary law is considered important because it defines the responsibilities and rights of a person in the community3. The main concern of Aborigines was that traditions and customs they had observed for thousands of years were not recognized by Non-Aboriginal people particularly those who make and administer laws. They felt that recognition of Aboriginal customary law would ensure justice and equality for all. This paper surveys the literature on recognition of Aboriginal customary law and discusses whether equality can really be achieved. Discussion Australian laws do not generally recognize traditional law as valid law but it allows traditional law to be taken into consideration in some instances. Some aspects of Aboriginal customary law are thus recognized as law4 The Federal department of Aboriginal Affairs was created in 1972 followed by appointment of The Woodward Commission in 1973 that was mandated with the task of coming up with the best method for implementation of Aboriginal land rights. The report culminated in the enactment of The Aboriginal Land Rights (Northern Territory) Act of 1976.The common wealth intended to reverse the years of discrimination by recognizing the inherent right of Aboriginals to retain their customs, traditions and racial identity. In 1980, The Aboriginal Development Commission was established to promote social and economic development for Aboriginal people and their integration. Recognition of Aboriginal customary law was set off by the Australian Law Reform Commission Report of 1986.The report gave recommendations on how customary laws could be incorporated within the framework of general law in Australian. It called on territory governments, the state and the common wealth to implement the measures within their areas of jurisdiction. The commission noted that while legislation and the courts recognized Aboriginal law in some instances, such legislation was incomplete and uncoordinated5. The commission based its recommendations on the following guidelines; That Aboriginal customary law should be recognized by The Australian System; that the recognition must be within the framework of the general law in Australia; and avoidance of creation of new and separate legal structures. Customary law was to be recognized in the following specific areas: family and marriage issues including child adoption, custody and fostering; distribution of property upon death; criminal law (sentencing; evidence, interrogation, and policing); hunting, gathering, and fishing rights; and local and traditional justice mechanisms for Aboriginal people6. Various arguments have been advanced some supporting recognition of Aboriginal customary law with others rejecting the recognition. Those who supported recognition of Aboriginal customary law in The Northern territory argued that the recognition would enhance reconciliation between Aborigines and non-Aborigines in the territory; non-recognition would lead to injustice particularly in relation to personal law matters; The existent legal system had failed to address Aboriginal disputes effectively; Traditional authorities would be more cost-effective in addressing Aboriginal disputes since they are cheap and efficient; formal recognition of Aboriginal customary law would lead to clarification of the law which was unclear in some circumstances; Non recognition promoted assimilation while recognition would ensure self-determination; and recognition would lead to respect for Australia in international human rights circles for upholding the rights and traditions of indigenous people. Arguments against recognition were also put forward. Opposers argued that customary law may include punishments and principles that are repugnant to morality and justice in the other sectors of The Australian society; Customary law has secret aspects whose disclosure is confidential thus inconsistent with The Australian legal system; incorporation of customary law in the wider legal system would cause the Aboriginal people to lose their right to control their customs; Adoption of Aboriginal customary law would result in discrimination and marginalization of Aboriginal women; Recognition would lead to conflict between the two legal systems; and finally that some Aboriginal people have been urbanized and modernized and thus their customary law has lost relevance to them7. The Australian Law Reform Commission advocated that Aboriginal customary law should not be recognized to serve all purposes in Australian law but that it should be adopted in areas of Australian law where failure to apply it would result in injustice for Aboriginal people. This was premised on the fact that if the customary law was applied to serve specialized needs of the Aboriginal people it would not result in racial discrimination of Australians of other origins8.This would ensure that the basic legal and human rights of everyone in the society are observed and enforced. Incorporation of Aboriginal customary law into the mainstream legal system in the Northern Territory was discussed extensively during the development of a new constitution for The Northern Territory to replace The Northern Territory (Self Government) Act of 1978.Community wide consultations were conducted in order to accommodate the divergent views of every member of the community. There was strong feelings among The Sessional Committee on Constitutional Development members for recognition of customary law of traditional Aboriginal communities and that the two legal systems (the formal one and the Aboriginal Customary law) should run concurrently9. After holding community wide consultations, the constitutional committee issued a discussion paper on Aboriginal customary law whereby the committee considered the following issues: Whether Aboriginal customary law should be accorded legal recognition in The Northern Territory; Whether the recognition should be incorporated in the constitution; Whether if upon recognition customary law that is inconsistent with inherent human rights should be excluded; Whether recognition should be limited to geographical jurisdiction; whether any recognition should be subjected to any superseding statute in the territory; and whether customary Aboriginal Law should be enforced by courts or by special Aboriginal courts10. In a final draft constitution, the committee recommended that Aboriginal customary law should be recognized expressly as a source of law in the Northern Territory under the constitution. However the committee limited application of the law to the extent that it was only applicable where a person felt that he or she was bound by the law11.Customary law was to be accorded recognition similar to the one accorded to common law in the Northern Territory. Common law and customary law were not to be viewed as two distinct systems of law but were to be viewed as complementary systems of law12.The objective of the provision was to ensure that Aboriginal people were subject to their traditional customary laws as well as to non-indigenous territorial laws without suffering double jeopardy. In 2002, the Attorney General of The Northern Territory set up a commission to inquire into Aboriginal Customary Law in The Northern Territory. The committee recommended that the government must acknowledge the need for recognition of Aboriginal customary law. Recognition of customary laws poses challenges in that the law varies from place to place and from community to community; and that the persons who have the authority to speak on the law vary and so do their opinions. It is a universal practice in most of The British colonies that while matters of public policy are governed by English law; matters of personal law are governed by the customs of the particular community.13Personal law encompasses issues of family law particularly marriage, inheritance, divorce and custody. The family law system in the Northern Territory posed challenges for indigenous communities in that they were not able to gain access to the family law system due to language and cultural difficulties14. The Australia Law Reform Commission recommended that traditional marriages should be recognized by equating them to marriages conducted under The Marriage Act. However marriages which infringe on fundamental human rights such as child marriages would be rendered null and void. The marriages were to be recognized whether they were potentially or actually polygamous. Cohabitation of partners gave rise to legally recognized defacto marriages. This reduced the disadvantages suffered by the marginalized as a result of failure to recognize traditional forms of marriage such as loss of maintenance of children and property rights upon dissolution of a traditional marriage15. Under Aboriginal customs, the mother’s brother is responsible for the education and discipline of the child in cases of adoption. Preference must be given to place an Aboriginal child in care of an Aboriginal care giver16.The intestate estate of an Aborigine should be distributed in compliance with the customary laws of the deceases person. However a person who reasonably expected support but was excluded can make an application for review under statute law. Claims by immediate members of the family should override any customary law provisions17. Application of customary law in civil matters covers land rights, hunting, gathering and fishing rights; and protection of Aboriginal cultural heritage. In The Northern Territory Native Aboriginal land rights are recognized under The Native Title Act while Aboriginal Land Trusts are granted inalienable free hold title under The Aboriginal Land Rights (Northern Territory) Act. Traditional land owners can veto mining, exploration and other activities carried out on Aboriginal land. A permit must be obtained in order to enter Aboriginal land. The Torres Strait Islander and The Aboriginal Land Fund are meant to aid indigenous natives who were dispossessed of their traditional land and therefore cannot obtain a native title18. Protection of The Aboriginal Cultural heritage is also ensured. In Foster v. Mountford19, it was held that the law of confidential information also protects information that is protected by tradition. In the case an Anthropologist had obtained information about tribal objects, sites, paintings, totemic geography and community traditions from Aborigines and sought to publish the obtained information in a book. The plaintiffs sought to prevent the anthropologist from selling the book. The court prevented the sale and held that it would amount to breach of confidence since the information held a lot of cultural significance to the Aborigines. The Northern territory legislature is mandated to make laws that protect sacred sites of The Aboriginal people and prevent their desceration.The Copy right act accords indigenous artists the same level of protection accorded to other Australian artists20. There are some images and designs that belong to the original people and therefore only Aborigine artistes have the right to paint them. In Yumbulul V Reserve Bank of Australia21, The Reserve Bank was authorized to reproduce a design known as “Morning Star Pole” by an Aborigine known as Terry Yumbulul on a bank note. The design was considered sacred and he had inherited the right to paint it from his mother and father who were custodians of his clan. The artist was heavily criticized by Aborigines and it was held that he had breached his responsibilities under traditional law. Existence of Aboriginal customary law must be proved in a court of law22. An inquiry into whether the law a party seeks to rely upon exists must be held before it is applied. Customary law is applied limitedly in criminal law particularly in relation to fitness to stand trial and interrogation due to the cultural and linguistic obstacles that Aboriginal people encounter. The Supreme Court ruled that where an Aboriginal person does not understand the language, an interpreter must be provided at state expense. Customary law offences such as disregard for kinship responsibilities are to be punished exclusively under customary law. The Northern Territory Legislative Assembly has powers to confer Aboriginal communities with the power to make laws that bind community members and that can be enforced by the police in The Northern territory. Judges can also consider customary law before sentencing an Aboriginal criminal offender. In R v. Wilson Jagamara Walker23, the accused was sentenced to three years imprisonment to be suspended if he showed good behavior for two years. In awarding the sentence, the judge considered the fact that upon return to his Aboriginal community, the accused would be speared in the thigh as punishment24. The Northern territory government recognized Aboriginal customary law to pursue consistency with Australian law, international law, universal human rights and fundamental freedoms. It was however not put into statute because to codify it would be to destroy it; it does not apply to non-Aboriginals neither does it apply to all Aboriginals. In some instances Aboriginal customary law is inconsistent with provisions in customary international law instruments and international conventions. For instance customary international law expressly prohibits cruel, torture, inhumane or degrading punishment. Punishment in the Aboriginal society is cruel and inhumane since it involves acts such as burning to death or spearing the criminal in a thigh. The state must therefore step in to prevent such occurrences. Recognition of Aboriginal customary law has resulted in conflicts between the legal systems. For instance legislation in The Northern Territory expressly recognizes polygamy while The Common Wealth Attorney General’s office is vehemently opposed to polygamy. Traditional marriages involving underage girls since the age limit for traditional marriages is not set. Human rights conventions and The Commonwealth Attorney General’s Department prohibit recognition of the marriage of an underage party25. It is appropriate to apply Aboriginal customary law in family law matters but application of criminal law should be uniform in any jurisdiction and it should not look as if Aborigines are being accorded special treatment. Criminal law should not be seen to discriminate on basis of religion, race or culture as was recommended in The 1960 London Conference on The Future of Law in Africa. Aboriginal customary law also contains some secret aspects concerning certain rituals and sacred ceremonies. Disclosure of the information to unauthorized persons is considered an offence under Aboriginal customary law. This is inconsistent with the best practices of the judiciary. Courts are therefore incapacitated from receiving or acting on such evidence yet it could result in gross injustice. It is therefore very dangerous for the mainstream Northern Territory legal system to recognize Aboriginal Customary law while it is not possible to know the consequences of such recognition26. Aboriginal customary law also tends to subjugate women and is discriminatory towards them. Domestic violence occurs in Aboriginal societies and it is justified by patriarchy27.The fact that customary law is diminishing and is on the decline in most parts of the world raises the question of why it should be recognized.28 Conclusion Equality cannot really be achieved through recognition and application of Aboriginal Customary law. Legal pluralism has been defined as a situation whereby there exist distinct legal systems or different laws in one country. Legal pluralism mainly results from introduction of a new legal system due to political and social issues.29It can exist formally through express recognition of a new legal system or informally without recognition by the major legal system. Recognition of Aboriginal customary law resulted in formal legal system with the law of The Northern Territory as the dominant legal system. While legal pluralism is meant to ensure justice and fairness for all, sometimes it results in division and violation of basic tenets of the law. Recognition of Aboriginal customary law cannot guarantee equality. In any case it might even make the Northern Territory society to be more unequal. Read More