Distribution of Property between Living Persons[2]

326. Scope of this Chapter. The previous chapter discussed the issue of property distribution in the context of Aboriginal traditional marriage and considered whether it was desirable for the law to be changed to take account of traditional marriages for those purposes.[1] In the areas affecting property distribution it focussed on the recognition of the marriage for the purposes of family provision (testator’s family maintenance) and intestacy. This chapter is concerned with the transfer of property and the problems which may occur if Aboriginal traditions for transfer and distribution do not accord with the legal requirements.

327. Differing Attitudes to Property. Traditional Aboriginal societies were not materialistic. Although land and what might be described as ‘intellectual property’ were of great significance, those material possessions unrelated to ceremonial activities were not:

The range of directly useful material objects is not large … Basically for women there is the digging stick. For men there are spears, spear-thrower, and perhaps the boomerang and club.^[3]

However the giving of gifts (food or other items) was an important way of creating bonds and satisfying obligations within the kinship system:

economic activity was not for personal profit or economic gain. The important thing was not the economic value of the gift given, or the relative value of the gifts in an exchange, but the act of giving and receiving which reinforced social bonds. If Aborigines gave things away, it was not because they did not value things or the rights of private ownership (for they personally owned all their tools and weapons), but that they placed a higher value on fulfilling kinship obligations.^[4]

Gifts were not only exchanged to reinforce kinship bonds but also on an inter-tribal basis, and there were extensive trade routes.^[5] Berndt and Berndt list the various bases of gift exchange as including:

• gifts made to settle grievances and debts;

• gifts in return for services or for goods which would include gifts associated with carrying out ceremonies:

• formalized gift exchange involving trade between various defined partners:

• general trade: and

• gift exchange which occurs in relation to large sacred ceremonies.^[6]

328. Transfers of Personal Property. The general law allows substantial freedom to individuals in the handling and disposition of their property, and imposes, for the most part, minimal requirements of form with respect to the transfer of personal property, especially between living persons. Few conflicts appear to have arisen between Aboriginal customary laws and the general law. While the formal requirements of the law for the transfer of goods from one person to another do not appear to have created particular problems, the growing demand for Aboriginal artwork and its production for commercial purposes has raised some difficulties. These difficulties go much wider than the mere transfer of personal property. Many Aboriginal objects and paintings depict myths and totemic figures which have significance not only to the individual artist but to some or all members of the group to which the artist belongs. Selling or giving away such paintings or sacred objects may involve a serious breach of Aboriginal customary laws yet fulfil the requirements of the general law for transfer of property. Important questions arise as to the protection of Aboriginal artwork and designs.^[7] In the present context the issue is whether it is necessary or desirable for the law covering the transfer of personal property to be amended to take into account aspects of Aboriginal customary laws. Amendment to the law could create uncertainty for ordinary transactions and thus cause more difficulties than it resolves. In any event there has been no demonstrated need, nor have any submissions been made to the Commission, for changes to the law to be made in this area. Aboriginal customs of gift giving, the exchange of goods and services and the sale of personal property appear to fit within the normal legal rules. Problems with sale of artefacts and restoration of items of cultural significance need to be addressed specifically, not through the mechanism of any general change to the law of property.

329. Real Property and Aboriginal Customary Laws. The term ‘real property’ includes a wide range of legal and equitable interests generally related to land. It thus includes the land itself and intangible interests such as a right of way (easement) to walk across land owned by another person, or a profit a prendre, that is, a right to harvest natural resources on the land. Questions of hunting, fishing and foraging rights, involves broader issues than the range of fights that can be granted by way of easement or profit a prendre: they are dealt with in Part VII of this Report.

330. Aboriginal Land and Real Property Law. At present, Aborigines who have acquired land individually are free to deal with it in the same manner as any other land-owner.^[8] For the same reasons as with personal property, there seem to be no demand for or need to change the law in this regard. Different considerations apply with respect to Aboriginal land fights created by special legislation. As noted, these issues have not been the subject of investigation in this Report.^[9]