Traditional Indigenous Law

In August 1981, Nugget Combs, commonly referred to as the unsung hero of the Mabo decision, chose the speakers for a Land Rights conference in Townsville. Three of those speakers, Eddie Koiko Mabo and two lawyers, resolved to initiate a claim for native title to the Murray Islands in the Torres Strait. Eleven years later, on June 3, 1992, five months after Mabo's death, the High Court finally accepted his argument that his people had occupied the Island Mer for hundreds of years. (SMH, 21/11/97 p.6)

Justice Gerard Brennan reflected the majority view of the High Court (six to one) when he said, "Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted" (Brennan, 1992)

The "outrageous notion of terra nullius" (Keating in Watson, 2002 p.204) under Australian law, was finally quashed. Don Watson, Keating's speechwriter, summed up the initial reaction beautifully, "The historical significance of the decision was obvious to everyone, except all those with no history… and as this meant 80% of the population and 90% of the [press] gallery, panic and excitement took some time to set in". (ibid, p.204)

When it did it wasn't pretty. "It was an ugly nexus of pragmatism, self-interest, provincial paranoia and racism pure and simple." (ibid, 2002 p.381) In a climate of alarmist rhetoric (Jeff Kennett warned suburban backyards were under threat, and mining chief Hugh Morgan predicted racial tension and economic stagnation), the then Prime Minister, Paul Keating reacted to the decision by describing it as "the best chance we have ever had for reconciliation" (The Age, 01/06/02 p.4). 

Keating was a man of vision and a brutally pragmatic politician. He sensed an opportunity. He understood the importance of clearing the wreckage of the past in order to build a future. In a landmark speech later that year in Redfern, he acknowledged and defined the dispossession; and for the first time in Australian history, opened the official non-indigenous doors to reconciliation. 

"We took the traditional lands and smashed the traditional way of life. We brought the diseases. The alcohol. We committed the murders. (and the rape) We took away the children from the mothers. We practiced discrimination and exclusion". (The Age, 27/05/02 p.15) As Robert Manne, associate professor of politics at La Trobe University said, "Every word was true and obvious. Yet for a nation that had spent the better part of 200 years in a form of denialism about its origins, the Redfern speech still had the capacity to unsettle and shock".(ibid, p.15)

One year later, after the longest debate in the history of the Australian senate The Native Title Act was passed, enshrining the Mabo case in law. Keating said years later, "had [we] chosen not to see the High Court (Mabo) judgement as an opportunity rather than a problem and left [native title] to a succession of courts and a succession of cases to clear the points of law… a lot of the residual title would have been pre-emptorily extinguished". (The Age, 01/06/02 p.4) The Act recognised and protected native title but intentionally did not make clear whether native title existed on pastoral leases. This issue was left to the courts. (SMH 21/11/97 p.6) 

The Mabo decision and the subsequent Native Title Act afforded Indigenous Australians the legal opportunity to contest two centuries of dispossession, though they were still operating in a fundamentally foreign paradigm. Traditional Aboriginal Law (that the concept of native title sought to validate) is based on precepts and concepts, that until now were unrecognised in the Commonwealth courts. Fred Chaney, co-chairman of Reconciliation Australia and deputy president of the National Native Title Tribunal said, "The recognition by Australian courts of rights that flow from Indigenous Law and customs, rather than rights granted by parliaments… is the real significance of Mabo". (The Age, 01/06/02 p.4)

Keating later wrote that the Native Title Act empowered Indigenous Australians "to the point where they could tell us what was best for them, rather than us tell them what we thought was best for them". He identified the need for Aboriginal people to learn how to negotiate; "they could not distinguish between their core interests, their vital interests and their peripheral interests. They used to always speak as though everything in their claims had the same priority and weight, and of course, it never did". (ibid p.4) Hidden in those last five words, behind the famous Keating "arrogance", lay the essence of the intrinsic cultural divide. Traditional Indigenous values do not distinguish between and assign import as Western values do, and nor should they. The irony of the situation is that in order to have Traditional Indigenous Law validated in the courts, Indigenous Australians have had to conform to processes of Western Law – remembering of course, that without that Traditional Law, the Native Title Act would never have got up.

Traditional Indigenous Law is intrinsic to The Dreaming, and subsequently Aboriginal identity. So much so that "Indigenous Australian people use the term, 'the Law' in place of, or synonymous with the term 'The Dreaming" (Bird et al, 1996 p.26) E Stockton describes the basis upon which Aboriginal Law was founded:

In the beginning of the creative period, when the ancestral beings emerged from the earth and set about their creative tasks, all option were open to dispute and negotiation. The stories tell how the ancestral beings interacted with one and other, often violently, as they jostled and experimented to find out what was possible for each. Their behavior did not set up models of future morality: their acts were not so much immoral as amoral, for as yet there was no law. Rather their way of acting in the creative period set up relationships between each other, so that by the end of this phase boundaries were determined, options were closed. When the Dreaming 'changed over', they become immobile and lost their range of options.

Henceforth each life form represented in the person of its Dreaming knew the law by which it would live: where it could travel, what it could eat, what was its moiety, how it was to relate to others, what was its culture. Each clearly knew its own law so that all could co-exist without destroying each other. So as each ancestral being assumed the form in which it currently exists, the decisions arrived in the Dreaming became the law of that life form, and as such was recognised and passed down to each generation, becoming the conscious responsibility of each individual. (Stockton, 1995 p.60)

Traditional Indigenous Law is a complex and self-sufficient social construct that has sustained its people longer than any other culture currently surviving. Its vital role in the Native Title cases highlights its very real connection to the present. Its reliance on oral traditions – and much of the evidence in the 591 current Native Title cases depends upon oral accounts(Koch, 1991 p.94) – has been a difficult legal obstacle, highlighting the conflicting notions of truth and trust between cultures. There are many differences in law between Indigenous and Non Indigenous Australians. The very notion of contesting law, the basis upon which Mabo arrived, and paradoxically upon which the threats to Native Title do also, is foreign to Indigenous law. Indigenous law is fixed. Bill Niedjie explains why things are and why there have to be that way.