Recognition through Legislation

76. Legislative Responses. In a number of respects Federal, State and Territory legislation now has the effect of recognising aspects of Aboriginal customary laws and traditions. This is so, for example:

• in conferring land rights on the basis of traditional claims or associations;^[27]

• in the protection of sites which are sacred or significant as a matter of Aboriginal tradition;^[28]

• in making special provision to permit forms of traditional food-gathering;^[29]

• in limited provisions recognising traditional Aboriginal marriages;^[30]

• in recent initiatives recognising Aboriginal child care practice;^[31]

• in allowing a distribution of property on death which is more in accordance with Aboriginal family and kin relationships;^[32]

• in establishing local courts or other machinery staffed by Aborigines, which may be more aware of local circumstances and better able to take issues of Aboriginal tradition and custom into account.^[33]

77. The Grant of Land Rights. The point has already been made that legislation conferring land on the basis of Aboriginal tradition, or allowing traditional claims to land to be made, can be regarded as a recognition of Aboriginal customary laws.^[34] The first and most important example of such legislation was the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Act specifically recognises Aboriginal traditions in a number of ways. In addition to the provisions for land grants and claims, s 71(1) provides that:

Subject to this section, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land …

The Aboriginal Land Act 1978 (NT), which is complementary to the 1976 Commonwealth Act, likewise regulates entry onto Aboriginal land through a form of recognition of traditional rights. Section 4 provides that Aborigines entitled under Aboriginal tradition to enter or remain on Aboriginal land may do so under the Act.^[35] These Acts apply, of course, only to Aboriginal land. They do not protect customary interests or rights of access in land which is not ‘unalienated Crown Land’ under the 1976 Act. In South Australia the Pitjantjatjara Land Rights Act 1981 (SA) s 15 vests land in the Anangu Pitjantjatjaraku, the body corporate of the Pitjantjatjara, in a way which in effect constitutes a recognition of traditional association with land.^[36] Legislation in a number of other States in various ways and to varying extents recognises customary land use.^[37]

78. Sites and Sacred Sites. Before 1965 there was no legislation protecting Aboriginal sites, with the minor exception of certain regulations in the Northern Territory. In 1965 the South Australian Government was the first to enact such legislation, and all other States have since done so.^[38] Interim Federal legislation designed to protect areas and objects of ‘particular significance to Aborigines in accordance with Aboriginal ‘tradition’ has also been enacted.^[39] Many thousands of sites have been recorded by State authorities; over 6000 by the Australian Institute of Aboriginal Studies, and over 3000 by the Heritage Commission — although registration provides no guarantee of protection from development or interference. In addition, the protection extended by these various Acts differs considerably, and they do not necessarily provide protection for Aboriginal traditions as such. For example, definitions of ‘site’ or ‘relic’ that require some ‘trace … of Aboriginal culture’^[40] may well not extend to natural objects or sites which are sacred or significant, while they may cover archaeological sites (eg kitchen middens) which have no special significance to Aborigines now. On the other hand, such provisions may allow Aborigines to protect traditional interests in sites in various ways.^[41] For example, in Onus and Frankland v Alcoa of Australia Ltd, the High Court held that the traditional or customary law responsibilities of the plaintiffs with respect to a particular site were a recognisable or sufficient interest to give them standing to challenge an industrial development affecting that site.^[42] In response to a statement by a judge in the court below that the court could not recognise matters of cultural significance outside the Western European or common law traditions without legislative encouragement, Justice Murphy commented:

Australia is a nation composed of peoples deriving from a variety of cultures, which are not restricted to Western European. Our people also adhere to a variety of religions many of which are not ‘Judeo-Christian’, and many have no religion. ‘Western-European Judeo Christian culture’, if there is such a culture, has no privileged status in our courts. Aboriginal culture is entitled to just as much recognition. If a cultural or religious interest founded on ‘Judeo-Christian Western-European’ traditions is enough to establish standing, then a cultural or religious interest founded on Aboriginal tradition is also enough.^[43]

79. Hunting and Fishing Rights. The traditional rights of Aboriginal people to hunt and fish have received legislative recognition, for example, in the form of reservations in pastoral leases.^[44] Thus s 106(2) of the Land Act 1933 (WA) provides that the Aboriginal natives may at all times enter upon any unenclosed and unimproved parts of land the subject of a pastoral lease to seek their sustenance in the accustomed manner. Section 47 of the Aboriginal Land Rights Act 1983 (NSW) makes provision for Aboriginal people, in certain circumstances, to have access to land for the purpose of hunting and fishing. Recognition may also be accorded by exempting Aboriginal people engaged in traditional hunting or fishing from the operation of certain provisions of wildlife and fisheries legislation. The National Parks and Wildlife Conservation Act 1975 (Cth) s 71(1) for example empowers the Governor to make regulations on a wide range of matters, but provides that these regulations should not in the absence of express provision, be interpreted as affecting traditional use of land by Aborigines.^[45] Recognition of hunting and fishing practices has also been extended at the international level, under the Treaty between Australia and Papua New Guinea of 1978.^[46] These and similar provisions in State and Federal legislation are important especially where Aboriginal people are supplementing their diet with bush foods of various kinds, in what are essentially traditional, established ways.^[47]

80. Aboriginal Traditional Marriages. In particular cases and for particular purposes, traditional Aboriginal marriage has been equated to ‘marriage’ under some Australian legislation. A number of Northern Territory Acts recognise traditional marriage for certain specified purposes.^[48] Traditional marriage is also recognised for the purposes of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and in Victoria for the purposes of adoption and guardianship.^[49]

81. Aboriginal Child Care Practices. The Northern Territory is the first Australian jurisdiction specifically to recognise and protect Aboriginal child care practices. The Community Welfare Act 1983 (NT) s 69 provides for an Aboriginal child placement principle, in some respects similar to that in the Indian Child Welfare Act 1978 (USA), and governing decisions with respect to Aboriginal children in need of care. A similar provision applies in the case of adoptions of Aboriginal children in Victoria.^[50]

82. Traditional Distribution on Death. The Administration and Probate Act 1979 (NT) recognises traditional Aboriginal marriage^[51] and also makes provision for a ‘traditional distribution’ of property to be ordered in appropriate cases where an Aborigine dies intestate.^[52] Section 35 of the Aboriginal Affairs Planning Authority Act 1972 (WA) also allows for a traditional distribution of the estate of a deceased Aborigine on intestacy, although only in very limited circumstances.^[53]

83. Aboriginal Courts. The second of the two specific questions in the Commission’s Terms of Reference concerns the ways in which Aboriginal people may be empowered to apply their customary laws in the resolution of disputes within their communities. This might take different forms, including the creation of Aboriginal courts of various kinds. In fact there are ‘Aboriginal courts’ currently operating in Queensland and Western Australia.

• Queensland Courts. Aboriginal courts operate on 14 ‘trust areas’ (former Aboriginal reserves) throughout Queensland, although not always on a regular basis. These courts had their origins in the Aboriginal Preservation and Protection Act 1939 (Qld) which gave extensive powers to the Chief Protector of Aborigines. Amendments to this Act in 1945 extended these powers to include Aboriginal courts, police and gaols. Today the courts are staffed by Aborigines, but their jurisdiction is limited to a range of minor offences committed within the trust areas.^[54]

• Western Australian Courts. A system of Aboriginal courts operates at a number of Aboriginal communities in the north-west of the State. These were introduced on an experimental basis under the Aboriginal Communities Act 1979 (WA).^[55]

• South Australian Tribal Assessor. The Pitjantjatjara Land Rights Act 1981 (SA) provides for giving effect to the customs and traditions of the Pitjantjatjara people in the hearing of certain disputes. Section 35 enables a tribal assessor to be appointed . Any member of the Pitjantjatjara aggrieved by any action of the body corporate and its members may appeal to the tribal assessor.^[56] In hearing the appeal the assessor is not bound by the rules of evidence,^[57] and should observe and where appropriate give effect to relevant customs and traditions.^[58] The Maralinga Tjarutja Land Rights Act 1984 (SA) contains similar provisions.^[59]