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THE RECOGNITION OF ABORIGINAL CUSTOMARY LAWS - 708. Dispute Resolution Process.
A detailed study of dispute resolution mechanisms at Yirrkala was undertaken by Dr Nancy Williams, based on fieldwork in the late 1960s and early 1970s. [103] The study reveals that the Yirrkala people have a sophisticated and ritualised process of dispute resolution, based on the use of intra-and inter-clan moots. [104] The grievances of the disputants may, and in many cases would, have already been publicly announced or become widely known with such publication normally occurring in one of the following ways:

· verbal declaration;

· verbal declaration accompanied by some threat of physical injury;

· assault;

· destruction of property. [105]

Once a grievance becomes public in this way it has the status of a dispute and the procedures that need to be adopted to resolve it become important. According to Dr Williams there are 5 basic characteristics of the dispute settlement process at Yirrkala:

1. Intervention and subsequent management by a clansman with political authority who is senior to both the disputants;

2. Gathering and checking evidence by the intervening clansman;

3. Obtaining an admission of all culpable acts (the 'true story');

4. Confirmation of findings and of action taken by those with authority over and responsibility for the principals in the dispute.

5. The application of sanctions. [106]

An integral feature of this process is the moot, in which the disputants and interested parties are brought together so that the matter may be discussed. All or only some of the five characteristics of dispute resolution may occur within the moot, although it is likely that some preliminary work to gather information will have been done beforehand and that follow-up work will be required afterwards. The moot itself is an organised procedure, and as witnessed by Dr Williams, had four distinct phases:

· Statements of the offence and relevant law by those with jurisdiction.

People address themselves to the specific allegations in the case under consideration. They may mention any other allegations they consider pertinent, and they judge the consequences of alleged acts.

· Response to the allegations. The convener urges the defendant to admit the extent of his or her culpable acts. The defendant, who was the agent of the culpable act, responds.

· Statements about the outcome, and the composition for the dispute may be made by a number of people but should include the convener, the offender, and the aggrieved person. [107]

Williams comments that:

the relationship between modes of disputing and procedures of dispute settlement is clear Brothers-in-law (sisters' husbands) offered restraint as well as exhortation to settle the dispute, and subclan and clan leaders offered to manage the procedures of dispute settlement that would provide a satisfactory outcome. [108]


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