Aboriginal And Torres Strait Islander Law - Notes
ABORIGINAL AND TORRES STRAIT ISLANDER LAW - NOTES
There are two distinct groups of indigenous Australians. They are the Aboriginals and the Torres Strait Islanders. The Aboriginals live on mainland Australia and the Torres Strait Islanders live in the Torres Strait which was annexed ( became part of) Queensland in the 1870’s.
Customary Law– Rules of society and family which indigenous peoples developed over many years and form a basis for community For example: Unwritten law, Kinship ties and relationship and ritual traditions.
Terra Nullius - ‘The land of no one’. The English law treated terra nullius as those territories which were inhabited but whose indigenous inhabitants have a social organization so primitive with no obvious system of law. Hence, Australia was named Terra Nullius in 1788
Native Title – Recognition of land rights. That the ATS people had ownership right to the land
Prior to 1992 – The land was Terra Nullius, belonging to no one. This referred to the land being inhabited by people who had no system of law or political organizations that was recognized by the English.
Assimilation– Indigenous Australians were to be westernized so as to become part of non-indigenous society, in terms of culture , religion and way of life.
NOTE: ATSI people follow a customary legal system, passed down from many generations
Aboriginal and Torres Strait Islander (ATSI) customary law – 1788
The distinct differences between ATSI law and contemporary Australian Law are that:
Spiritual nature of their customary law – based on morals and ethics
- The Contrast with English law (e.g. the land regulations in the ‘English’ law clearly stated that land was Terra Nullius, belonging to no one, as the ATSI people did not believe in ownership of land). They believed it was for collective benefit and not for economic profit.
- The significance of land (The ATSI people had a ‘connection’ with the land. They were physically, religiously and spiritually dependent on the land). The ATSI people were disposed of their land, which meant that it was taken from them by force. The land was seen as sacred to them and something that gave life and hope for the future.
- Enforcement of sanctions
- Conciliation and mediations
- Ritual and traditions – The rituals and traditions of the ATSI people are very strong because of the lack of written history. Therefore the information has been passed down from generation to generation orally.
- There is a broad diversity in ATSI law – There were thousands of ATSI tribes, each with their own laws and languages. However the common thread
Between tribes was the belief in the dream time. This set their morals and traditions.
Resolution of disputes
Steps to ADR’s (Alternative Dispute Resolutions)
1. Negotiation – Involves 2 people discussing issues and mutually agreeing to resolution
2. Conciliation and Mediation – Controlled (by the elders in ATSI times). They would often Mediate ( Talk) between groups or individuals , resolve disputes and give out punishments
3. Arbitration – First step in LEGAL pursuit against the dispute
4. Courts – The final, most binding step taken towards resolving the situation
The steps taken towards traditional ATSI people’s disputes:
1. Consensus and agreement
2. Talking
3. Argument
4. Ritual Ordeal
5. Mediation and Conciliation
Serious Situations included punishments such as:
1. Revenge
2. Social Ridicule, insulting and isolation
3. Trial by ordeal e.g. Spearing
4. Death
Redfern Riots
The Redfern riots on the 14th February 2004 were an example of the poor relationship between ATSI people and police within Redfern the riots were stared because of the death of 17 year old boy Thomas TJ Hickey. Through this incident it was evident that police do not know how to relate to the ATSI people as they are unable to follow conduct according to customary aboriginal law. It was this incident that started up the ‘operation Viking’ which is basically police on patrol especially in the Redfern area
Mabo Case
The Mabo case is significant, not only because it led to the native title legislation but also because it gave the ATSI people recognition.
This came through the court system as well, with the land no longer being Terra Nullius.
As a result of the Mabo decision (1988), Native title was recognized as a precedent to all courts. Native title is defined in section 61 of the Act as the rights and interests of ATSI observed under traditional custom and recognized by the common law of Australia.
The Mabo case consisted of two major decisions. The first resolved the racial discrimination in the islands and the second gained them Native Title.
The Mabo case concerned 3 Murray Islands. The occupants of these islands known as the Merriam people were settled on the islanders many generations before European settlement. In 1982, 3 islanders (including Eddie Mabo) took action in the high Court of Australia claiming that they should have land rights to the islands as they were culturally and spiritually significant to them. This case was against the Queensland government
The High Court found that the Queensland Act was trying to limit the land rights of the ATSI people because of their race. The Queensland act was invalid because of the racial discrimination Act 1975(Commonwealth). The High Court referred the matter back to the Queensland Supreme court before going on to consider the issue if Native Title in the Mabo case.
The second case (1992) was held to Claim Native Title. The main issue was whether the annexation of the Murray Islands by Queensland in 1879 had the effect of vesting in the Crown absolute ownership of all land in the Murray Islands thereby extinguishing native title. This basically meant that the ASTI people of the Murray islands had to have reasonable evidence that they were ‘attached’ to the land. The court ruled that the Merriam people were entitled to posses, occupy, use and enjoy the Murray Islands.
The notion that Australia was terra Nullius was dismissed by the High Court in Mabo.
To claim Native title the HCA laid down the rules that
1. Must have maintained their traditional identity and system of culture and customs
2. Must have maintained a substantial connection with the land
3. Had interests that, under customary law, entitled the group to occupy and use the particular land claimed.
Wik Case
The Wik case (1996) concerned with pastoral leases which had been granted under Queensland legislation and been claimed as Native Title by the Wik and Thayorre people. The Wik people claimed that their rights had not been ‘extinguished by virtue of the grant of a pastoral lease over their land’. The main issue was whether the granting of a pastoral lease extinguished Native Title.
The high court ruled that a pastoral lease did not necessarily extinguish native title rights. It was stated that these two rights (pastoral and Native Title) would be based on a co-existent agreement which under the law means that the land is shared. The Wik people had to prove that they maintained their traditional identity and system of culture and customs, maintained a substantial connection with the land and ad interests that, under customary law, entitled the group to occupy and use the particular land claimed, which was the guidelines set in the Mabo case.
Yanner Case
The Yanner case (1999) showed the excise of Native Title. After killing a crocodile, eating the meat and using the skins in his home, Yanner was charged with breaching the Flora and Fauna Conservation Act 1974 (QLD) because he did so without holding a license. Yanner argued that the native Title at applied in this instance and was therefore not guilty.
The court ruled in favor of Yanner and stated that he was, under the law, allowed to excise his Native Title rights.
You my friend have bad taste in the areas of law 