Recognition of Custom at Common Law

61. The Recognition of Native Customs under the Common Law. Quite apart from the dichotomy between ‘settled’ and ‘conquered’ colonies, the common law itself has at least potentially the capacity to recognise some customary rights or titles. This could occur in two distinct ways. The common law rules for recognition of custom, if received in the relevant colony or territory, could apply to bring about the recognition of at least some local customs. Alternatively, in the specific context of rights over land, the common law could directly or indirectly recognise ‘communal native title’ as such — either because a doctrine of communal native title as a personal or proprietary right in land under the Crown is recognised as part of the common law, or because the Crown’s recognition of such title (eg by proclamation or other executive act) is treated as effective by the courts. Something should be said about each of these methods.

62. The Common Law and Custom. The common law has always allowed that local customs which meet its criteria for recognition could be applied as law.^[5] No clear limits seem to have been set to the customs that could be recognised in this way. They have included distinctive forms of land tenure, special rules of inheritance, rights to use common land or the seashore for particular purposes, rights of way, hunting, fishing and foraging rights and rights to hold a market. But the categories of customary rights are not, it seems, closed, and those that have been recognised do not fit into any defined class or classes.^[6] The courts have controlled claims to local customary rights more through the application of the general criteria for recognition; and in practice relatively few claims to local customs have been recognised. Briefly, the common law requires that the custom not be inconsistent with any statute or fundamental principle of common law, that it have existed ‘from time immemorial’, that it have been exercised continuously and peaceably, as of right, that it should be sufficiently certain both as to its content and its beneficiaries, and that it be regarded as ‘reasonable’ by the court.^[7] The requirements of antiquity and reasonableness are particularly relevant for present purposes. The common law came to equate ‘time immemorial’ with the year 1189 AD, the limit of ‘legal memory’ (although it was sufficient that there was no evidence against the custom’s continuation since 1189 and that it could have existed then).^[8] Clearly, the year 1189 AD is irrelevant to conditions in British colonies: after one early decision applying it,^[9] colonial courts required only that the custom be shown to have existed for a sufficiently long but unspecified period of time.^[10] Even so, the proof of long continuance by a claimant and his predecessors has often, and especially among groups with predominantly or exclusively oral cultures, been a matter of great difficulty.^[11] The requirement of ‘reasonableness’ also allows courts to avoid recognising customs regarded as unconscionable or ‘repugnant’; this power was quite often used both in England^[12] and abroad.^[13] It has never been decided whether the common law rules relating to recognition of local custom were received in Australia, and the application of those rules to Aboriginal customs has not yet been examined by Australian courts.^[14] The attitude of early courts to Aboriginal customary laws was such that recognition was most unlikely to have been accorded: the Supreme Court in Murrell’s case, for example, stated that Aborigines ‘had no law but only lewd practices and irrational superstitions contrary to Divine Law and consistent only with the grossest darkness’.^[15] By contrast Justice Blackburn in Milirrpum’s case (a case dealing with communal native title rather than local custom in the strict sense) had no difficulty in finding that ‘the social rules and customs’ of the clans in question constituted a system of law.^[16] But in other respects his decision illustrates the formal and evidentiary difficulties that are likely to stand in the way of claims to local custom. Given these difficulties, as well as the general coverage by statute of most of the areas in which ‘local Aboriginal custom’ might be relied on in Australia, it is clear that any such common law recognition is likely to be, at best, peripheral to the questions dealt with in this Report.^[17] The Australian experience bears this out: after nearly 200 years there is no case where the common law rules for recognition of custom have been relied on in this context.

63. Communal Native Title. A second way in which the common law in settled colonies might recognise at least Aboriginal customary law rights in land is through a doctrine of ‘communal native title’. This would involve the recognition of a special collective right vested in an Aboriginal group by virtue of its long residence and communal use of land or its resources. In Milirrpum’s case Justice Blackburn held that such a doctrine had no application to a settled colony, or, at least, to Australia as a settled colony.^[18] However at Feast three, and perhaps all six, of the judges of the Canadian Supreme Court who discussed the question in Calder v Attorney-General of British Columbia^[19] disagreed with this view in relation to British Columbia (also a settled colony), and later Canadian decisions have also taken a different view.^[20] So far as Australia is concerned the question is clearly still an open one, as the High Court recognised in Coe v Commonwealth.^[21] It is currently before the High Court in a case, Mabo v Queensland and the Commonwealth, involving a claim to communal native title or ownership of Murray Island in the Torres Strait, ownership said to have been recognised by Great Britain, Queensland and the Commonwealth on and after the acquisition of British sovereignty in 1879.^[22] The claim in Mabo’s case — and other Aboriginal claims to land on the basis of traditional associations — can be regarded as claims to the recognition of one important aspect of customary laws (in this case, the customary law of Torres Strait Islanders) . The question of Aboriginal land rights is not directly dealt with in this Report.^[23] The importance of traditional land claims, and of land rights issues generally, must be acknowledged,^[24] but their resolution, though it may help to create more secure conditions in which traditionally oriented Aborigines may live, will still leave unresolved a range of questions related to the recognition of Aboriginal customary laws. These questions, which are the focus of this Report, must be specifically addressed, and cannot be left to the very limited protection of the common law rules relating to recognition either of local custom or communal native title.