๐Ÿ’ฐ Recognition of Aboriginal Customary Laws (ALRC Report 31) | ALRC

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Commission the question of recognition of Aboriginal Customary Law. 7 E.g. Commission of Inquiry into Poverty, Second Main Report, Law and Poverty in non-Aboriginal children In Western Australia, over 54 % of the children ( ofโ€‹.


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Commission the question of recognition of Aboriginal Customary Law. 7 E.g. Commission of Inquiry into Poverty, Second Main Report, Law and Poverty in non-Aboriginal children In Western Australia, over 54 % of the children ( ofโ€‹.


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too, over the same years, the Law Reform Commission of Western Australia (โ€‹LRCWA) concluded its inquiry into Aboriginal customary laws.


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Law Reform Commission of Western Australia โ€“ Aboriginal Territory Law Reform Committee Inquiry into Aboriginal Customary Law in the.


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too, over the same years, the Law Reform Commission of Western Australia (โ€‹LRCWA) concluded its inquiry into Aboriginal customary laws.


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The ALRC received terms of reference for this inquiry on 9 February Aboriginal customary laws and traditions should be taken into account In , the Law Reform Commission of Western Australia completed a.


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Law Reform Committee inquiry into Aboriginal Customary Law in the Northern report of the Australian Law Reform Commission (ALRC 31 - The Recognition decision on native title in Western Australia v Commonwealth (โ€‹).


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DISCUSSION PAPER. Law Reform Commission of Western Australia. December into and report upon Aboriginal customary laws in Western. Australia'.


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There have been several Australian law reform inquiries into indigenous issues, Law Reform Commission of Western Australia, Aboriginal Customary Laws.


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The focus of ALRC Report 31 (tabled 12 June ) was whether it would be desirable to apply, either in whole or in part, Aboriginal customary.


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western australian law reform commission of inquiry into aboriginal customary law

The discussion paper for this inquiry, titled Towards mutual benefit, contains an overview of the consideration of Aboriginal Customary Law to date at the national level and in the Northern Territory. The Aboriginal peoples did not cease to observe their sui generis system of rights and obligations upon the acquisition of sovereignty of Australia by the Crown. In Walker v NSW 19 , the High Court had to consider whether customary Aboriginal criminal law is something which has been recognized by the common law and which continues to this day, in the same way that Mabo decided that customary law relating to land tenure continues to exist. Similarly, and concurrently to the work of the Council, the federal Government introduced its response to the High Court's decision in Mabo No. The relationship between the Commonwealth Government and the Aboriginal and Torres Strait Islander peoples of Australia is founded in full acceptance and recognition of the fundamental rights of Aboriginal and Torres Strait Islander peoples to:. The 11 years since the High Court's decision in Mabo have seen the recognition, subsequent regulation and clarification of native title by the federal Parliament, state and territory parliaments and the court system. Justice von Doussa did find, however, that the system of customary law created a fiduciary obligation on the part of the artist to his community not to exploit the artistic work in a way that is contrary to the laws and customs of his people and, in the event that copyright is infringed by a third party, to take reasonable and appropriate action to restrain and remedy the infringement. Reconciliation : Shortly after the submission of the social justice package proposals there was a change of government at the federal level and the social justice package was abandoned.

The Sex Discrimination Commissioner has also made a submission to this inquiry. This response included the creation of the Native Title Act Cth ; the creation of the Indigenous Land Acquisition Fund overseen by the newly created Indigenous Land Corporation and the sanctioning of Indigenous organisations developing a series of proposals for a 'social justice package' to address the consequences of Indigenous dispossession.

The question however is whether those Aboriginal laws can create binding obligations on persons outside the relevant Aboriginal community, either through the recognition of those laws by the common law, or by their capacity to found equitable rights in rem.

Significantly, this does not reflect the non-existence or abandonment of Aboriginal Customary Law but instead the inability or unwillingness of the native title system to act as a vehicle to recognise and protect it.

There seems to be no reason to doubt that customary Aboriginal laws relating to ownership of artistic works survived the introduction of the common law.

Whilst it is superficially attractive to postulate that the common law should recognise communal title, it would be contrary to established legal principle for the common law to do so.

English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it. The principles include the following. The Court therefore did not have jurisdiction to make a determination of native title in this case.

The challenge created by the Mabo decision, of significance for the continuation of Aboriginal Customary Law, can be explained as follows:. There is nothing in Mabo No. In Mabo No. There is no analogy with the criminal law. The result of this approach is that even though Aboriginal people continue to maintain a spiritual connection with the land, the common law will consider their native title rights to be extinguished where inconsistency occurs.

Recent Native Title Reports recognise that there have been a number of determinations of native title as well as Indigenous Land Use Agreements which have provided recognition and protection to some native title holders. Recent High Court decisions interpreting the scope of the Native Title Act have also provided a restrictive interpretation to the source for native title to protect or recognise Aboriginal Customary Law.

The applicants sought the Federal Court to consider whether communal title in traditional ritual knowledge, as expressed through artwork, could be recognised and protected by the Australian legal system as an incidence of native title, and alternatively whether a fiduciary obligation could be found to be owed by the artist back to the community and whether the common law is capable of recognising some form of traditional community ownership of copyright in equity.

The Social Justice Commissioner urges this Inquiry to take a broad perspective in determining the circumstances in which Aboriginal Customary Law should be provided both formal and informal recognition in the Northern Territory. In this fragmented form, every right and interest for which recognition is claimed needs to be identified.

As discussed later in this submission, they identify the need to ensure an appropriate balance between formal, legislative, protection of customary law and informal recognition through processes aimed at community empowerment and capacity building.

When combined with the ease with which control of access is extinguished, 27 this leaves limited opportunity for native title to protect culture. Customary law also continues to exist across the Territory and to be exercised, in varying degrees and in different ways, by different Aboriginal communities.

It is about providing recognition to Aboriginal customary processes for healing communities, resolving disputes and restoring law and order.

Thus even though Indigenous relationships to land, in their cultural context, may be unique and incommensurable, through the native title process they are given a meaning which renders them comparable to non-Indigenous property rights and thus able to be extinguished.

Native title as a bundle of separate and unrelated rights with no uniting foundation is a construction which epitomises the disintegration of a culture when its law-making capacity, that is its sovereignty, is neatly extracted from it. ATSIC this web page that Governments legislatively adopt a series of Social Justice Principles to underpin policy development on Indigenous issues, as well as guide all future relationships between the Commonwealth and Indigenous peoples.

Despite this, there has been limited progress in providing either formal or informal recognition. Even if it be assumed that the customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application.

The recommendations emanating from each of these processes contain recommendations relevant to the recognition of Aboriginal Customary Law. The High Court's decisions in Yarmirr, 8 Miriuwung Gajerrong, 9 Wilson v Western australian law reform commission of inquiry into aboriginal customary law 10 and Yorta Yorta 11 crystallise the law with respect to the recognition and extinguishment of native title.

The Social Justice Package : The social justice package report by ATSIC, titled Recognition, rights and reform - Report to Government on native title social justice measuresspecifically identified the range of issues that they considered needed to be addressed in order to provide social justice for Indigenous Australians.

At the outset, the Social Justice Commissioner wishes to commend the Northern Territory Government for its statements that it is of the view that 'in accordance with Australian and international law, Aboriginal Customary Law should be recognised consistent with universally recognised human rights and western australian law reform commission of inquiry into aboriginal customary law freedoms' and that it believes that 'there is much value in supporting and sustaining Aboriginal Customary Law, and that the knowledge contained in Aboriginal Customary Law can be of mutual benefit to all citizens of the Northern Territory as well as its custodians' 2.

These High Court decisions western australian law reform commission of inquiry into aboriginal customary law also confirmed a more limited and fragile understanding of native title as a bundle of rights as opposed to a deeper system of law.

Justice von Doussa did go on to consider whether communal ownership or customary law obligations in relation to copyright could be recognised under the general law or within the terms of the Copyright Act Cth. There are other concerns that have been expressed by the Commissioner, the courts, governments, and other parties, including that:.

It is reflected in all too familiar statistics about the over-representation of Indigenous men, women and children in criminal justice processes and the care and protection system; as well as in health statistics and rates of violence.

These decisions indicate the limitations of relying upon the native title system in order for Indigenous people to have aspects of Aboriginal Customary Law recognised and consequently for them to be able to enjoy their cultural and property rights.

The rights and interests recognised in NTA s 1 as native title, must be created by traditional laws and customs existing prior to British sovereignty.

The Court was unable to consider whether intellectual property rights were an incident of native title as section 1 of the Native Title Act Cth requires that the procedures of the NTA must be followed in order to make a determination relating to native title, and the applicant had not made an application under the Https://metodplatforma.ru/for/german-slot-machines-games-for-pc.html. The National Strategy for recognising Aboriginal and Torres Strait Islander rights includes as a key objective of the strategy in relation to land, culture and heritage to 'Promote respect for Aboriginal and Torres Strait Islander law' On the issue of Aboriginal Customary Law it states:.

Such rights arise from our status as the First Peoples of this country, peoples whose rights predated its colonisation and the imposition of non-Indigenous law and social structures. In particular the Commission notes three main developments of relevance to the recognition of Aboriginal Customary Law - the reconciliation process; social justice package and Bringing them home report. The High Court understood that this separation of rights and interests from the laws they originate in was fragmenting an otherwise integrated order. Principles for Indigenous social justice and the development of relations between the Commonwealth government and Aboriginal and Torres Strait Islander Peoples. Mason CJ rejected this proposition. They indicate the deterioration of traditional, customary law processes for regulating the behaviour in communities. Developments in the native title system demonstrate the difficulty in striking an appropriate balance between providing certainty in the interaction of a form of Aboriginal Customary Law with non-Indigenous interests through the mainstream legal process and providing appropriate recognition and protection to Aboriginal Customary Law. The third main development since has been the national focus on responding to the consequences of the past treatment of Aborigines and Torres Strait Islanders. This construction of native title reflects the failure of the common law and the NTA to recognise Indigenous people as a people with a system of laws based on a profound relationship to land. The Council for Aboriginal Reconciliation, however, continued to consider the actions that it considered necessary for reconciliation with Indigenous peoples to be achieved. Each of these documents contains recommendations and actions related to the recognition of Aboriginal Customary Law. In Coe v Cth Mason CJ rejected the proposition that Aboriginal people are entitled to right and interests other than those created or recognised by the laws of the Cth, its States and the common law. The Council for Aboriginal Reconciliation was established in to recommend strategies for achieving reconciliation with Indigenous peoples. This section identifies a series of developments that have taken place largely since the Royal Commission into Aboriginal Deaths in Custody in These developments have implications for the recognition of Aboriginal Customary Law in the Northern Territory. This disjuncture between Aboriginal law and culture and common law recognition was acknowledged in the High Court's Miriuwung Gajerrong decision:. The Council released its documents of reconciliation comprising the Australian Declaration Towards Reconciliation, the Roadmap Towards Reconciliation, and four national strategies to achieve reconciliation in May and its final recommendations to the Australian people in December in the report to federal Parliament, Reconciliation - Australia's challenge. In Miriuwung Gajerrong the Court ruled that the only practices protecting cultural knowledge that come within the NTA are those rights of 'denial or control of access to land or waters'. Given the diversity of circumstances of different Aboriginal communities across the Territory, there will be no one size fits all model and care will have to be taken to ensure that any form of recognition of customary law is grounded in the traditions, customs, experiences and day to day livelihoods of different communities and does not seek to impose additional forms of regulation on Indigenous peoples. ATSIC recommended that the Commonwealth should also negotiate with state, territory and local governments for the adoption of the principles. Customary Law is therefore more than a mitigating factor in sentencing processes before the courts. The Social Justice Commissioner acknowledges the importance of these documents in analysing a range of key issues to be considered by this inquiry. This is due in part to the intervention of the formal legal system through removal from country, historical lack of recognition of traditional rights to country and non-recognition of customary law processes as an integral component of the operation of Aboriginal families and societies in the Northern Territory. He stated:. While the High Court decision was specifically concerned with Indigenous land title and rights, its acknowledgement of the ongoing legal validity of Indigenous law and custom pointed to the need for a broader recognition of the fact that as a distinct peoples, Aboriginal and Torres Strait Islander peoples are entitled to enjoy distinct and unique rights. The applicant's statement of claim argued that:. The native title system demonstrates how the introduction of an extensive regime of codification can militate against the purpose of protecting and strengthening Aboriginal Customary Law. The reports have also raised a number of significant concerns with the operation of the native title system as it has been codified by the Native Title Act Cth , the plethora of state and territory legislation which the Native Title Act permits to be introduced, and the interpretation of this legislation by the courts. This places limits on those rights and interests that will be protected under s 1 of the Native Title Act, the traditional laws and customs, is not a functioning system but one which ceased to operate from the time that British sovereignty was imposed. This construction however was considered necessary by the legislation governing the recognition process. To conclude that the Ganalbingu people were communal owners of the copyright in the existing work would ignore the provisions of the Copyright Act and involve the creation of rights in Indigenous peoples which are not otherwise recognised by the legal system of Australia. Effectively, any right to protect cultural knowledge that is not a restriction of access to country cannot be recognised as native title. After finding approximate common law equivalents for these core concepts of traditional law and custom and denying some interests for which no equivalent can be found the Court then determines the extent to which the creation of rights to control access to land under the non-Indigenous property system would extinguish them. In the Social Justice Report , the Aboriginal and Torres Strait Islander Social Justice Commissioner recommended that these social justice principles be adopted as the framework for negotiations about service delivery arrangements, regional governance and unfinished business, including recognition of Aboriginal Customary Law. Ultimately, one thing that these statistics reflect is the breakdown of Indigenous community and family structures. The most significant development since has undoubtedly been the recognition of native title by the High Court in Mabo v Queensland No. There have been a variety of Inquiries and Reports that have considered processes for recognising Aboriginal Customary Law over the past thirty years. In addition to these documents, the Commission commends to the Committee the excellent analysis of issues relating to the recognition of Aboriginal Customary Law in the report of the New South Wales Law Reform Commission on the sentencing of Aboriginal offenders. In the formulation of policies and delivery of programs that affect Aboriginal and Torres Strait Islander peoples, the Commonwealth, pursuant to powers in relation to indigenous peoples overwhelmingly granted it by the people of Australia in the Referendum:. The second, related, trend in the past decade has been the failure of attempts to include within the scope of native title a broader recognition of Aboriginal Customary Law. Ultimately, the Commissioner's view is that customary law should be treated by the Government as integral to attempts to develop and maintain functional, self-determining Aboriginal communities. To access that submission click here. In the Yorta Yorta decision, the High Court constructed a notion of sovereignty that denies the law-making power of Indigenous people after the imposition of British rule. The Aboriginal and Torres Strait Islander Social Justice Commissioner annually provides an analysis as to whether this recognition is consistent with human rights standards through the Native Title Report to federal Parliament. The decision dealt with what can be labelled the 'distinct rights' of Aboriginal and Torres Strait Islander peoples. Accordingly, while acknowledging the importance of these, this submission will only refer to these documents in so far as they specifically relate to the issues addressed in this submission. It is not the purpose of this submission to provide a summary of the findings and analysis of these documents. He found:. What has emerged from the courts is a concept of recognition as not simply the law providing a vehicle for Indigenous people to enjoy their culture and property rights - rather the law becomes a barrier to their enjoyment and protection. In the Commissioner's view, there is currently a crisis in Indigenous communities.