Law reports push piecemeal changes to native title, but still fall short

June 2016 marks two significant anniversaries for the relationship between Australia’s Indigenous and settler populations. June 12 is the 30th anniversary of the Australian Law Reform Commission’s (ALRC) publication of its report on Aboriginal Customary Laws; and June 3 marked 24 years since the Mabo ruling.

The ALRC report uncovered a wealth of information on Aboriginal and Torres Strait Islander cultural practices. Its aim was to determine the desirability of applying – on the whole or in part – customary law to Indigenous Australians.

And the 1992 High Court ruling in the Mabo case was a game-changer; it consigned the legal fiction of terra nullius (the idea that Australia was uninhabited at the time of British colonisation) to the dustbin of history.

The ALRC report was an earnest attempt at acknowledging the existence and relevance of Aboriginal law and culture to Indigenous Australians. It stopped short of recommending special legislation recognising Aboriginal law, but it did make some useful recommendations about how settler law could deal more fairly with Aboriginal people by taking their traditions and customs into account.

What did the reports call for?

The political classes received the report with polite indifference. This fate befell another landmark inquiry, the Law Reform Commission of Western Australia’s (LRCWA) 1996 report into Aboriginal customary laws, in which I was involved.

The WA inquiry, like the ALRC’s, examined the status of Aboriginal law. Less energy was spent deciding whether Aboriginal law still held force than on asking how settler and Indigenous law could be harmonised.

The LRCWA found Aboriginal law was a fact of life for Indigenous Australians. It governed social relations on a daily basis – whether other Australians condescended to “recognise” the fact or not.

The report suggested it was insulting to Aboriginal people for their law’s existence to be constantly doubted, or make them prove they had law whenever it piqued settler Australians' curiosity.

This was also the finding of a 1994 Northern Territory Law Reform Committee inquiry. It concluded Aboriginal law was a significant and positive force in daily life – not just for Indigenous people in remote areas, but also in rural and urban communities.

Elders and cultural bosses told the LRCWA they did not want their law codified and written down like white man’s law, because that would allow white law (or worse, white lawyers) to “own” Aboriginal law. This confirmed the ALRC’s view that codification was not an appropriate way of recognising customary laws.

Aboriginal people are consistent in saying they want their own laws, rituals and ceremonies left alone: to be passed down orally, not written down. They are convinced, despite all the damage inflicted by white colonisation to the fabric of Indigenous social and spiritual life, that Aboriginal law will endure. For them, white-fella law is just a tablecloth; black-fella law is the sturdy table beneath.

Aboriginal people were interested in discussing why they were discriminated against by the settler law and justice systems; why the rates of Aboriginal people, particularly youth, in jail were so catastrophically high; and why their own law and culture were denied jurisdiction.

Many of the LRCWA report’s recommendations concentrated on what it called “community justice mechanisms”, such as setting up Aboriginal courts (where elders sit with magistrates); community justice groups (where elders sit with police and other agencies to develop local diversionary strategies); and what it called “community-owned” programs run and managed by Aboriginal communities.

Ideas in the ALRC’s spirit also called for investment in what it called local justice mechanisms.

How did Mabo change the game?

If the ALRC inquiry was a kind of gentlemen’s duel conducted within the accepted rules of the game, then Mabo was pure shock and awe.

The legislative response to the Mabo decision led to the Native Title Act. This delivered “bucket loads of extinguishment”, in the words of Tim Fischer, as well as granting native title.

The demands the act places on claimants to demonstrate continuity work to undermine the very purpose and spirit of the legislation (and the Mabo judgment) by making native title tortuously difficult to determine. Nonetheless, Australia is reaching a post-determination era; significant parts of its land mass are subject to a determination.

But the problems for title-holders do not cease there. The Native Title Act denies holders the right to leverage their land title to develop economic activity. This stymies their capacity to build “on-country” enterprises that sustain culture while generating capital (such as native fruits and medicines), or create partnerships with businesses such as resource industries, on favourable terms.

The act also denies them a veto over development activities they deem inappropriate.

The recommendations of the ALRC’s 2015 review of the Native Title Act go some way to rectifying some anomalies. It focuses on Section 223 of the Native Title Act, which says native title rights and interests include, but are not limited to, hunting, gathering, or fishing, rights and interests.

The ALRC recommended inclusion of a “right to trade”. This may allow title-holders to make better commercial use of their lands. It also throws some weight behind the view that law and custom are not static but evolve over time.

Connection to country may offer some Aboriginal communities a stake in their economic future. Country also provides a place to heal the traumas of colonisation, and a site where Aboriginal and settler forms of law can come together and have dialogue – an outcome favoured by the ALRC and LRCWA, and made possible by Eddie Mabo.

This article is part of a special package marking the 30th anniversary of the Australian Law Reform Commission’s report on Aboriginal customary law.