Reconciliation and Social Justice Library

THE RECOGNITION OF ABORIGINAL CUSTOMARY LAWS - 689. Local Self-Determination.

It is by no means clear that Aborigines would wish to take responsibility for all law and order problems occurring within their communities. It cannot be assumed that many offences with which Aborigines are commonly charged would somehow diminish or disappear if 'customary processes' were applied. To apply Aboriginal customary laws in this way may be simply misconceived. But there is an even more fundamental question. If Aboriginal communities are to be given power to apply their customary laws and practices (whether defined broadly or narrowly), is this being done in order to return to Aborigines greater control over their daily affairs, or is it rather an attempt to divest the general legal system of a problem it has been unable to resolve? Care is required to ensure that under the guise of saying 'these are matters for Aborigines to resolve', the shortcomings of the general legal system as it applies to Aborigines are not foisted onto Aboriginal communities. They may have neither the inclination nor the resources to take on this task. The primary answer is, no doubt, that nothing can be done without the general agreement of those Aborigines affected by a proposal. This is likely to mean that there will be no uniform response. Some Aboriginal communities may seek to apply their customary laws, or may seek even broader powers, to control law and order within their communities. Other communities may merely seek greater understanding between the two legal systems and control over the manner and level of policing. How, then, is it possible to accommodate this broad range of likely responses? These issues were discussed for example, by Dr von Sturmer, who referred to the 'common notion"

that Aboriginal 'mechanisms' (customary law, traditional decision-making procedures, etc.) should be extended to treat the whole new body of substantive matters with which they now have to deal. It is certainly demonstrable that the Aboriginal mechanisms alluded to continue to exist. Indeed, unless those people who are willing, for whatever reason, to foist new ways of doing things on Aboriginal societies, are also prepared to come to grips with the ways in which things are already done, their 'interventions' are doomed to failure. But it is a far cry from arguing this to accepting that the 'mechanisms' can be 'extended' in new conditions to meet what, in departmental jargon, are often described as 'the new challenges'. Not only do the exact nature of the 'mechanisms' and the precise range of the matters over which they 'play' remain to be identified, it is also palpably the case that the 'mechanisms' do not 'engage' the whole new array of matters which flow from the contact situation. [79]