Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
The history of 'recognition of indigenous law', of recognising some indigenous capacity over law and order matters, in Australia and in other comparable jurisdictions, has largely been one of trying to establish formal 'courts' or other similar mechanisms, usually run by the indigenous people, to which authority could be transferred or which could be recognised. But if the aim is only to recognise local customary laws, then (in societies lacking courts or similar agencies and relying on less formal, less centralised procedures based on kinship and locally-recognised power) attempts to 'find' or 'erect' official machinery are misconceived.
Such attempts might have some value if the aim were to 'indigenise' the existing criminal justice system, that is, to recruit Aborigines to perform some or all of the tasks of law-applying and law-enforcement as part of the general legal system. Equally, it would have some value if the aim were to confer a degree of autonomy on Aboriginal groups with respect to law and order matters. These last two aims are not necessarily consistent with each other. If 'indigenisation' were the aim then the existing legislative structure would be taken for granted, with emphasis being placed instead on finding suitable roles (new, existing or modified) which Aborigines may fill within it. If autonomy were the aim, then the focus would be on the scope of autonomy and on identifying the relevant unit of government. Such an exercise, even if thought desirable by outsiders could not occur without the active support and initiative of the Aboriginal group concerned, and need not lead to the 'recognition' or 'application' of customary laws (though it may do so). Aboriginal groups may be more concerned with the kind of rules applied within their group, or with their administration and policing, than with their application by 'courts'. They would be at least as likely to propose new or hybrid solutions to their problems at the legislative or executive levels as to propose customary ones, in particular since many of these problems are perceived as new or introduced, and not necessarily to be .resolved through the application of customary laws even in some modified form.