Australian Aboriginal Customary Law
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Indigenous Australian customary law refers to the legal systems and practices uniquely belonging to
Indigenous Australians Indigenous Australians or Australian First Nations are people with familial heritage from, and membership in, the ethnic groups that lived in Australia before British colonisation. They consist of two distinct groups: the Aboriginal peoples ...
of Australia, that is, Aboriginal and
Torres Strait Islander people Torres Strait Islanders () are the Indigenous Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal people of the rest of Australia, they are often grouped ...
.


Background and description

Indigenous peoples of Australia comprise two groups with very different histories, ethnicities and customs:
Aboriginal peoples Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
and
Torres Strait Islander Torres Strait Islanders () are the Indigenous Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal people of the rest of Australia, they are often grouped ...
s. Torres Strait Islanders are "strictly monogamous ndmostly church-married". The most notable customary practice differing from usual practice among non-Indigenous Australians is that of adoption, known as '' kupai omasker'', by members of the extended family or friends. The reasons differ depending on which of the many Torres Islander cultures the person belongs to. Most studies have looked exclusively at Aboriginal law and lore, with regard to personal and social customs. Aboriginal customary law developed over time from accepted
moral A moral (from Latin ''morālis'') is a message that is conveyed or a lesson to be learned from a story or event. The moral may be left to the hearer, reader, or viewer to determine for themselves, or may be explicitly encapsulated in a maxim. A ...
and
social norms Social norms are shared standards of acceptable behavior by groups. Social norms can both be informal understandings that govern the behavior of members of a society, as well as be codified into rules and laws. Social normative influences or soci ...
within Indigenous societies. They regulate human behaviour, mandate specific sanctions for non-compliance, and connect people with the land and with each other, through a system of relationships. Indigenous customary law is not uniform across Australia, and systems differ greatly between
language groups A language family is a group of languages related through descent from a common ''ancestral language'' or ''parental language'', called the proto-language of that family. The term "family" reflects the tree model of language origination in hist ...
, clans, and regions. Within some Aboriginal Australian communities, the words "law" and "lore" are words used to differentiate between the Indigenous and post-colonial legal systems. The word "law" is taken to refer to the legal system introduced during the European colonisation of Australia, whereas the word "lore" is used to refer to the Indigenous customary system. Learned from childhood, lore dictates the rules on how to interact with the land,
kinship In anthropology, kinship is the web of social relationships that form an important part of the lives of all humans in all societies, although its exact meanings even within this discipline are often debated. Anthropologist Robin Fox says that ...
, and community. Aboriginal customary lore is intertwined with cultural customs, practices, and stories from the
Dreamtime The Dreaming, also referred to as Dreamtime, is a term devised by early anthropologists to refer to a religio-cultural worldview attributed to Australian Aboriginal mythology, Australian Aboriginal beliefs. It was originally used by Francis Ja ...
. Customs are passed on through the generations by means of cultural works such as
songline A songline, also called dreaming track, is one of the paths across the land (or sometimes the sky) within the animist belief systems of the Aboriginal cultures of Australia which mark the route followed by localised "creator-beings" in the Dre ...
s, stories and dance. Those cultural works are passed on by
oral tradition Oral tradition, or oral lore, is a form of human communication wherein knowledge, art, ideas and cultural material is received, preserved, and transmitted orally from one generation to another. Vansina, Jan: ''Oral Tradition as History'' (1985 ...
. A report by the
Australian Government The Australian Government, also known as the Commonwealth Government, is the national government of Australia, a federal parliamentary constitutional monarchy. Like other Westminster-style systems of government, the Australian Government i ...
in 1986 did not find any codified versions of Indigenous customary lore, but acknowledged that the existing knowledge of Indigenous Australian traditions may be sufficient to be considered as such.


Recognition by the colonial legal system

Customary law has not otherwise been relevant to the development of Australian
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
by courts. Legislative bodies since the late-twentieth century have investigated the concept of incorporating Indigenous laws more formally into post-colonial legal systems. Reports by the
Australian Law Reform Commission The Australian Law Reform Commission (often abbreviated to ALRC) is an Australian independent statutory body established to conduct reviews into the law of Australia. The reviews, also called inquiries or references, are referred to the ALRC by ...
and the
Law Reform Commission of Western Australia The Law Reform Commission of Western Australia is a commission to investigate, review and advise on the reform of the law in Western Australia, a state of Australia. The present commission came into existence on 31 October 1972. History There ...
have discussed the desirability of recognising customary law in matters involving Aboriginal Australians. In the
Northern Territory The Northern Territory (commonly abbreviated as NT; formally the Northern Territory of Australia) is an states and territories of Australia, Australian territory in the central and central northern regions of Australia. The Northern Territory ...
, some statutes and courts make explicit reference to customary law where useful in identifying relationships and social expectations. These changes have sometimes been controversial, especially in cases where customary law is imprecise or infringes upon
human rights Human rights are Morality, moral principles or Social norm, normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for ce ...
. On 17 July 2020 the
Queensland Government The Queensland Government is the democratic administrative authority of the Australian state of Queensland. The Government of Queensland, a parliamentary constitutional monarchy was formed in 1859 as prescribed in its Constitution, as amended fr ...
introduced a bill in parliament to legally recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker), which was passed as the ''Meriba Omasker Kaziw Kazipa Act 2020'' ("For Our Children's Children") on 8 September 2020.


Land rights

European settlers in Australia assumed the legal fiction of Australia as
terra nullius ''Terra nullius'' (, plural ''terrae nullius'') is a Latin expression meaning " nobody's land". It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it. : : ...
during the period of colonisation. For that reason, lore was explicitly ignored by Australian courts, both during and after the colonial era. In 1992, post-colonial law recognised Indigenous lore as giving rise to a valid legal claim in the
Mabo decision ''Mabo v Queensland (No 2)'' (commonly known as ''Mabo'') is a decision of the High Court of Australia, decided on 3 June 1992.. It is a landmark case, brought by Eddie Mabo against the State of Queensland. The case is notable for first reco ...
, in which the legal fiction of terra nullius was discarded. While the court found that the crown held
radical title Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held "in allodium", or land ownership by occupancy and defense ...
over all land in Australia (including land subject to Indigenous legal claims), the High Court held that it would recognise customary legal rights to land; if and only if those legal rights had been maintained continuously since settlement, and not displaced by an inconsistent grant in title to another person (such as a grant in
freehold Freehold may refer to: In real estate *Freehold (law), the tenure of property in fee simple *Customary freehold, a form of feudal tenure of land in England *Parson's freehold, where a Church of England rector or vicar of holds title to benefice p ...
). Indigenous customary claims to land are regulated by the '' Native Title Act 1993''.


Regional examples


Arnhem Land

Madayin is the customary law of the Yolngu people, which embodies the rights and responsibilities of the owners of the law, or citizens (''rom watangu walal'', or simply ''rom''). As well as the objects that symbolise the law, oral rules, names and song cycles, and the sacred places that are used to maintain, develop and provide education in the law. ''Rom'' and its accompanying ceremonies are concepts and practices shared by the neighbouring Anbarra people, also in
Arnhem Land Arnhem Land is a historical region of the Northern Territory of Australia, with the term still in use. It is located in the north-eastern corner of the territory and is around from the territory capital, Darwin. In 1623, Dutch East India Compan ...
.


See also

* Australian Aboriginal Sovereignty * Customary law in South Africa


References


Further reading

* * *{{cite web , title=Cross-cultural categories, Yolngu science and local discourses, author1-link=Howard Morphy, first=Howard , last=Morphy, date=2003, publisher=Centre for Cross-Cultural Research, The Australian National University, website=Living Knowledge, via=ANU , url=http://livingknowledge.anu.edu.au/html/background/discussions/morphy_yolnguscience.htm " Yolngu assert that they have their own law (rom) in a number of different contexts... In many of these cases Yolngu law is at marked variance with Australian law... Until recently, in many areas of Australian law, such as tax law and family law, Yolngu, de facto, sat outside the everyday operation of the Australian legal system." Customary legal systems Law of Australia Indigenous law Indigenous Australian politics Australian Indigenous law Indigenous Australian culture