Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
· An Aboriginal court is responsible for the good rule and government of a trust area 'in accordance with the customs and practices of the Aborigines concerned' (s25);
· An Aboriginal court shall exercise its jurisdiction 'having regard to the usages and customs of the community within its area...' (s43); and
· An Aboriginal court has jurisdiction to hear and determine disputes where no breach of the by-laws, or of the general law, has occurred (s43(2)(b)).
Again, what these provisions will mean in practice is uncertain, but potentially they allow Aboriginal councils and courts to take Aboriginal 'customs and practices' into account, and indeed to incorporate aspects of them into local by-laws. There was no specific provision for this to occur under the previous regime, although some courts took local customs and practices into account at least as an aspect of the 'local knowledge' which is a prominent feature of the courts in practice. [187] In this context the power to deal with disputes of a general character occurring within the community is an interesting innovation. Some Aboriginal courts were already performing this function, [188] but it is better that it is specifically provided for. [189] Whether such disputes will be brought before the court remains to be seen: this is likely to depend on the degree of acceptance of the court within the community, and the standing and approach of the local justices.