The Approach to Recognition

198. The Commission’s Approach. What approach then, should be taken to the recognition of Aboriginal customary laws as defined in Chapter 7? What forms should the acknowledgement of the existence of Aboriginal customary laws take? There are several distinct ways in which the general leg al system may ‘recognise’ the laws and traditions of Aboriginal people. These are dealt with in turn.

199. Recognition as Acknowledgement. Aboriginal customary laws and traditions have significance in the lives of Aboriginals, especially traditionally oriented Aborigines. The recognition of Aboriginal customary laws can be supported as a form of support for those Aborigines. This does not me an that the general community can or should determine that Aboriginal customary laws are to be maintained. But the general community and its laws should be careful to allow scope for Aborigines who wish to do so to follow their traditions, and the question is how, consistently with other basic principles, this can be done. The acknowledgement of the existence of Aboriginal customary laws, combined with the determination to allow Aborigines a meaningful opportunity ‘to retain their … identity and traditional life style’, may lead to legislative and administrative policies of various kinds. These could be of a very general character: for example, guarantees of religious freedom or of the freedom of parents to bring up their children without undue interference.^[17] But the differences between Aboriginal customary laws and the general law, and between the assumptions implicit in the social life of Aboriginal communities compared with the general community, suggest that specific measures of recognition may also be necessary. In terms of their support for Aboriginal customary laws such specific measures may be direct or indirect. Indirect means may include, for example, the recognition of traditional associations to land and the consequent vesting of property or access rights, or the conferral of local autonomy, over a range of matters impinging on Aboriginal customary laws. There may also be more obvious or direct forms of recognition. But even here, ‘recognition’ may encompass a number of distinct forms or approaches.

200. Recognition as Incorporation. The general law might specifically or generally incorporate, and thus enforce, Aboriginal customary laws, and this could be done in different ways. For example, a code of customary law rules might be drawn up in statutory form (eg the Native Code of Natal^[18]) with the courts required to apply the customary law as set out in the code. Alternatively, legislation might incorporate Aboriginal customary laws by reference, without stating their content specifically. For example, legislation which protects sacred sites from unauthorised intruders while permitting entry ‘in accordance with Aboriginal tradition’, incorporates into the general law a rule of Aboriginal customary laws relating to access to sites.^[19] Similarly, legislation which allows Aborigines to use or occupy land in accordance with tradition could be regarded as incorporating an equivalent rule of Aboriginal customary law.^[20] These are examples of the specific incorporation of customary law rules. Specific incorporation of this kind seeks to embody the rule (whether expressed in words, as in a code, or incorporated by reference) as part of the general law. Incorporation by reference (as opposed to textual incorporation or codification) is a particularly valuable technique, if it is sought to achieve the maximum degree of correspondence between the general law and the customary law rule. It avoids the possibility of the customary law being misstated, or its content changing while the incorporated rule, being codified, does not change. For example, s 71(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) does not specify who may traditionally enter upon, use or occupy Aboriginal land under Aboriginal tradition, or for what purpose or under what conditions.^[21] In each case, it would have to be shown (eg, as a defence to a prosecution for entering Aboriginal land under s 70, or to a civil action for trespass) that the relevant Aboriginal tradition allowed the defendant to enter upon or use or occupy the land as he did. One consequence of this technique may be uncertainty as to the exact content of the law: for this reason, it may sometimes be necessary to qualify the incorporated rule in a way which does not correspond with customary law. For example, it is a defence to prosecution under s 69 of the 1976 Act (entering upon a sacred site on Aboriginal land) that the defendant did not know the site was a sacred site and had taken reasonable steps to find out where such sites were located.^[22] It would not usually be an excuse under Aboriginal customary laws that the violation of a sacred site occurred ‘innocently’.

201. General Incorporation of Customary Laws. It is much more difficult to find examples of the general incorporation of customary laws in Australia. But the Papua New Guinea Law Reform Commission’s Report No 7 on customary law proposed such an approach. That Commission proposed the enactment of an Underlying Law Act, s 4 of which would provide as follows:

(1) Customary law is adopted and shall be applied, either directly or by analogy as the underlying law unless-

(a) it is substantially inconsistent with any written law relevant to the subject matter; or

(b) its application would be contrary to the National Goals and Directive Principles, Basic Rights and Basic Social Obligations under the Constitution.

(2) Nothing in this section shall permit the application of a law other than customary law to customary land.

(3) Where the court considers that part of the rule of customary law to be applied as the underlying law does not comply with the provisions of paragraph (a) or (b) of Subsection (1) the court may, in so far as is practicable to do so, modify that part of the rule in such a way as to make it comply with the provisions of this section.^[23]

This provision, if enacted, would apparently give effect to the entire body of customary law, subject to the conditions in s 4(1). But given the breadth of these conditions, the effect in practice would be to confer a substantial discretion on the courts as to the content of the ‘underlying law’. It is therefore difficult to predict how successful a provision such as s 4 would be in its incorporation of customary law, or indeed, what effect it would have at all.^[24] Given these uncertainties, more specific forms of incorporation of customary laws are to be preferred, at least in the Australian context.

202. Incorporation and Autonomy. This conclusion is reinforced by a further feature of incorporation as a form of recognition which, although perhaps not a difficulty in Papua New Guinea with an indigenous majority, could be a distinct problem in Australia. If the ordinary courts were empowered to apply customary law and to become primary agencies for their application, there would be a very real danger that traditional Aborigines, whose access to and comprehension of the proceedings of ordinary courts may be very limited, would lose control over their own law. Western lawyers think of law in terms of rules and principles, which can be defined and applied in a general way. But Aboriginal customary laws are as much a process for the resolution of conflict as a system or set of rules.^[25] This characteristic makes the danger of distortion, where customary laws are applied by outside agencies, even more significant. Aborigines themselves are very aware of this danger. In the Commission’s experience, they are particularly concerned at the idea that the Reference is aimed at making the ‘two laws’ come together as ‘one’.^[26] This, they perceive, could result in their having as little control over the incorporated customary law as they have now over the general law. Only in particular contexts do they seek direct reinforcement of their own law by way of its incorporation in the general law. This tends to be in areas where they seek the protection of their institutions or knowledge from outside invasion or appropriation: for example, the protection of sacred sites, secret information and their cultural heritage generally.^[27] These issues can only be resolved by careful and specific inquiry, not by any general formula. Such considerations rule out any form of incorporation by codification. An example of this approach is the Native Code of Natal, which attempted to produce a series of ideal rules of customary law to be applied by the courts.^[28] This creates difficulties based on the variations between Aboriginal groups and their customs and traditions, and the immense practical difficulties in the way of recording them.^[29] But the cardinal objection to codification is that it takes the question of the interpretation and content of their customary laws and traditions out of the hands of the Aboriginal people concerned.

203. Recognition as Exclusion. An alternative technique of recognition, which is in a sense the reverse of ‘incorporation’, is to exclude certain matters from the general law, allowing them to be regulated directly by customary law which occupies the ‘space’ so created. A clear example is the position of United States Indian tribes.^[30] Initially, the area of Indian reserves was treated as excluded from State and most federal law (including the Bill of Rights). Within the excluded area the tribes were left free to regulate their affairs by virtue of their original sovereignty over that land. They were thus free to practice their traditional law ways, whether informally or through the making of tribal laws and the establishment of tribal courts. This freedom has been progressively restricted by measures such as the Major Crimes Act 1885 and the Indian Civil Rights Act 1968.^[31] Within the residual areas, however, the ‘original sovereignty’ of Indian tribes remains the basis of American Indian law. For various reasons, this system of ‘exclusion’ has not been very successful in securing the recognition of Indian customary law and tradition in the United States.^[32] Australia has a very different history of dealing with these issues, and it has not been suggested that the recognition of Aboriginal customary laws requires, or justifies, excluding Aborigines from the protection of the general law, or creating enclaves where the general law does not apply.^[33] However specific exclusions or limitations in the application of the general law to Aboriginal traditions may be justified in particular cases.^[34] There may also be a need to recognize Aboriginal autonomy in particular matters, with consequent modifications to the general law.^[35]

204. Recognition as Translation. One of the significant difficulties in any application of ‘foreign’ law by a legal system is the initial problem of equating the rules or institutions of one system with the (more or less different) rules or institutions of the other, for the purpose of recognising the former. In this sense, ‘recognition’ means giving equivalent effect. The problem is well-known to conflicts lawyers under the title of ‘characterization’. For example, a foreign marriage or adoption may not be able to be recognised as a valid marriage or adoption under local law unless it can first be characterised as such — that is, unless it has the basic characteristics which the local law regards as necessary to ‘marriage’ or ‘adoption’.^[36] The more the law or institution claiming recognition differs from the system within which recognition is sought, the more difficult this process of characterisation is, and the more adjustment may be necessary in making the translation. When what is involved is the recognition of indigenous customary laws, the task is in a real sense one of translation into a foreign legal language with an entirely different structure and ‘grammar’.^[37] This problem does not arise with ‘incorporative’ forms of recognition. There the customary law rule is introduced on its own terms into the general law. It does not matter much that the general law had no analogy to the introduced rule (apart from any unfamiliarity with the rule which officials of the general legal system may consequently have). For example, it does not matter that the general law may have had no equivalent to the right of traditional use of land recognised by s 71 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).^[38] That provision can be applied on its own terms.

205. ‘Translating’ Aboriginal Customary Laws. Some of the most significant problems of recognition of Aboriginal customary law for the purposes of the present Reference are problems of translation in this sense. This is true for example of the recognition of traditional marriage.^[39] A characteristic feature of this form of recognition is that it attributes consequences to the institution being recognised which it may not have had originally. There is, for example, no concept of spousal non-compellability in Aboriginal customary laws. But if traditional marriage is sufficiently similar to marriage under the general law for this purpose, it can be argued that this justifies equating it as ‘marriage’.^[40] A good example of ‘recognition’ in this sense is the partial equation of ‘traditional Aboriginal owner s’ with beneficial owners under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). As a consequence, the beneficial owners may acquire rights (eg to mining royalties) which had no exact equivalents under Aboriginal customary laws. This new consequence of ‘traditional ownership’ has placed considerable stress on the definition of ‘traditional owner’, and the way in which it has been applied by the Aboriginal Land Commissioner has changed and developed as a result.^[41] Recognition as ‘incorporation’ and as ‘translation’ are not mutually exclusive. For example, it would be possible to incorporate Aboriginal marriage rules (eg relating to the enforcement of promises of marriage, or punishment for adultery) as a part of the general law while also attaching new legal consequences to traditional marriage as ‘marriage’. Alternatively the definition of traditional marriage may operate by incorporating Aboriginal customary law rules defining marriage,^[42] without other forms of ‘incorporation’.

206. Recognition as Adjustment or Accommodation. Recognition can also be given to Aboriginal customary laws by adjustments to the law or its administration which, without specifically incorporating aspects of customary laws or translating them into the general law, allow for or accommodate them in practice. Many cases of the recognition of Aboriginal customary laws now are of this kind. Examples include:

• taking Aboriginal customary law or practices into account in sentencing Aboriginal defendants;^[43]

• declining to prosecute for certain offences against the general law where the Aborigine concerned was acting pursuant to Aboriginal customary law;^[44]

• the use of procedural powers to protect secrecy of certain information or to prevent it from being published to unauthorized persons.^[45]

Where the general law now allows for Aboriginal customary laws to be taken into account (eg in applying the law of provocation^[46] or assessing damages for personal injury^[47]), or where a discretion exists which can be used, it may be that no more formal recognition is needed. Indeed, it has been said that this is true for the criminal law and policing aspects of the Reference as a whole: ‘the difficulty arises not in the law itself but in its administration’^[48] and can therefore be resolved by administrative changes and ‘guidelines’. But this more flexible form of recognition can also be brought about through legislation. A law which expressly conferred a discretion on courts to take into account Aboriginal customary laws in sentencing would be a form of ‘accommodation’, since those customary laws would not be incorporated by such a provision: a judge in exercising the discretion would be applying the general law, and would have a considerable measure of discretion in doing so.^[49] Even a statutory provision which made no express reference to Aboriginal customary laws might be a form of recognition in this sense, if it was a response to the particular characteristics of traditionally oriented Aborigines. For example the enactment in statutory form of the Anunga rules^[50] would involve a recognition that traditionally oriented Aborigines may often not comprehend the nature of police interrogation or their right to remain silent, in part because of different perceptions of authority resulting from Aboriginal tradition. Such a statute would be an adjustment of the general law to take into account certain characteristics of traditionally oriented Aborigines resulting from their own traditions and laws, and, therefore, a form of ‘recognition’ of the latter.^[51]

207. Accommodation by Statute or Otherwise? An advantage of non-statutory methods of adjustment or accommodation is that they remain flexible and can thus cope with different circumstances. But there can also be disadvantages. Administrative discretions may be applied in a spasmodic or inconsistent way. Not all law-enforcement officials are equally aware of or sympathetic to the needs of Aboriginal people. Aborigines involved in such situations are, in the absence of clear guidelines, much less able to challenge adverse decisions: they have no right to recognition. Inconsistency in the exercise of discretions can exist not only between different communities or localities at the same time but in a particular locality at different times, as a result of changes in personnel or policy. If a clear case for recognition can be made out, there is a good argument for that recognition to be incorporated in official form (whether as legislation or as some form of binding guidelines) rather than leaving it to be applied as a matter of discretion. Legislation or guidelines of this kind may still preserve flexibility, but they will enable persons affected to call for their cases to be properly considered on their merits.

208. Preferred Forms of Recognition. Recognition may thus take different forms including:

• codification or specific enforcement of customary laws;

• specific or general forms of ‘incorporation’ by reference;

• the exclusion of the general law in areas to be covered by customary laws;

• the translation of institutions or rules for the purposes of giving them equivalent effect (eg marriage or adoption);

• accommodation of traditional or customary ways through protections in the general legal system.

The Commission does not believe that the first of these is an appropriate form of recognition of Aboriginal customary laws.^[52] Nor, at the present time and except in limited circumstances, is the third.^[53] For the reasons already given the Commission prefers specific, particular forms of recognition to general ones. It also prefers forms of recognition which avoid the need for precise definitions of Aboriginal customary laws, a notion which is to be understood broadly rather than narrowly. But these conclusions assume that the precise form of recognition may vary with the context and with the problems being addressed. This is in fact the case. The approach to be adopted must be flexible rather than categorical. and must pay particular regard to the practicalities of the situation.