For at least 65,000 years Indigenous people have lived on the continent now known as Australia. It is an ancient history, predating human settlement of Europe and the Americas. At the time of British settlement in 1788, it is estimated that there were approximately 750,000 Aboriginal people living across the entire continent, with possibly 500 Aboriginal nations within which there were numerous tribes or clans.
The portrayal by early settlers of the original inhabitants of Australia as primitive savages was part of the argument used by white settlers to claim that Australia was terra nullius and to justify dispossession of the original occupants from their land. This portrayal was (and is) far from the truth. Outstanding features of traditional Aboriginal society are highly sophisticated religion, art and social organisation; an egalitarian system of justice and decision-making; complex, far-reaching trade networks; and the demonstrated ability to adapt to, and survive in, some of the world's harshest environments.
Prior to British settlement, Indigenous people had a rich system of kinship and well developed governance systems based upon communal principles, with complex interlocking rights, responsibilities, privileges and entitlements. But, unlike western-style corporate governance, there is not one system of laws, traditions, rules and codes of conduct underpinning governance for all Aboriginal peoples and Torres Strait Islanders. Each Indigenous group lived (and in many cases continue to live) within patterns of laws relevant to their particular group or society.
From 1788 onwards, British settlers brought with them to Australia the animals, crops and agricultural methods that had been used for thousands of years in Britain, ignoring the unique plants, animals, soils and weather patterns of a continent far removed from their experience. They also ignored the knowledge and techniques the local Indigenous occupants had developed over tens of thousands of years of careful observation, which allowed Aboriginal communities to live across the entire continent. In addition, settlers brought with them notions of governance based upon commerce and individuality that were in sharp contrast with those of the original inhabitants whose governance systems were underpinned by their communally focussed cultures.
“The community consults these elders for advice and leadership in official matters but the traditional approach to decision making is one of consensus occurring across layers of networks…”
The English terms ‘leadership’ and ‘leader’ are foreign or unknown in many Aboriginal and Torres Strait Islander languages. Rather than identifying an individual as a leader (as in western culture) experienced and senior initiated men and women are held in high esteem by their community as ‘elders’. The community consults these elders for advice and leadership in official matters but the traditional approach to decision making is one of consensus occurring across layers of networks, depending on the nature of the decision. These ‘elders’ have had a role in traditional systems of governance for tens of thousands of years, undertaking responsibilities for maintaining and protecting traditional laws, traditions, systems of knowledge and rights and interests.
Authority to make decisions in traditional communities resides in the group (or groups) most directly associated with the issue and so most affected by the outcome. Sometimes ‘bigger issues’ having implications for larger groups or several communities will need to be made on a bigger scale within the network of relationships. Problems for traditional Indigenous governance arise when the ‘wrong’ people or group is involved in decision making or when factional interests undermine group consensus.
In the early days of settlement, the colonial government singled out certain Indigenous people as leaders, and distinguished them by gift of breastplates (also called king plates), so as to ensure their cooperation in European efforts to ‘open up’ traditional lands. By appointing ‘kings of tribes’ as ‘leaders’ of Indigenous groups for their own purposes, the colonial powers by-passed traditional governance principles and disrupted consensus decision making. As a result, not only were the original inhabitants dispossessed of their lands by expanding settlement, but their traditional governance systems based on communal principles, were also disrupted at an early stage.
Fast forward now to 1992 and the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo) where the High Court disproved the fiction of terra nullius, holding that Australian law recognised that at the time of colonisation, there were existing Indigenous owners of the land with their own legal systems. This was truly a watershed moment in Australian legal history, shaking the foundation of land law upon which British claims to possession of Australia were based. But the shift in the foundation of Australian law did not come without its limitations. That limitation was the exposure of Indigenous rights and interests in land (native title), which had survived British assertion of sovereignty, to extinguishment when the Crown grants rights to others, or appropriates land to itself. Thus, even though the High Court confirmed that native title existed after the time Australia was settled by the British colonists and that native title persisted after the assumption of sovereignty, the dispossession of Indigenous people from their land by the expanding settlement of the Australian continent was confirmed.
The following year, the Native Title Act 1993 (Cth) (NTA) was enacted as a legislative framework to deal with past and future implications of Mabo. In short, the NTA provides a national system for the recognition and protection of native title. It also provides a mechanism for determining claims to native title and compensation.
The journey to recognition of native title can be long and arduous; it is also disruptive for Indigenous groups required to establish their adherence to traditional laws and customs in order to succeed. Once native title has been determined to exist, further disruption occurs, this time in respect of traditional systems of governance.
Following a determination of native title, the NTA requires that the native title holders must establish a corporation to represent them and manage their native title interests. These organisations are known as Prescribed Bodies Corporate (PBCs). They are required to incorporate under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). PBCs must comply with the NTA, its Regulations and the CATSI Act, whose corporate rules are often at odds, or difficult to reconcile, with traditional laws and customs. One example is the tension between corporate directors’ duties on the one hand, and family obligations on the other, a tension that heightens the risk of conflict of interest in decision making.
The disruption of conflicting non-Indigenous governance structures on traditional governance systems has occurred around the world as part of the legacy of the imposition of colonial legal systems. A common theme in these regions has been the view that traditional communal governance systems impede economic development. Thus it has been asserted that communal ownership has not permitted any country to develop. In part, this can be understood as a rejection of more complex traditional governance systems that include consensus decision making which, by its nature, is a matter of slow agreement, potentially changing over time.
The conflict between western style governance, largely driven by economic considerations, and traditional communal governance systems is, at heart, a clash of cultures. This can be dealt with in three ways.
The first is for the non-Indigenous ‘superior’ culture to be allowed to expunge traditional culture. This was the initial approach taken by colonial governments as they attempted to eliminate Indigenous peoples from the territory’s history. Assimilation then becomes a core doctrine and apparatus of settler colonisation for managing Indigenous populations that survive the massacres and violence. In its various forms, it has a long and complex history but essentially it demands conformity to the dominant culture, while it erases others. Even the first ever international treaty focusing exclusively on indigenous peoples, ILO Convention No 107 1957, which gave a number of important rights to Indigenous peoples, had as its final goal the assimilation of Indigenous groups into the mainstream society. This ideology has now been abandoned in Australia.
The second approach is to attempt to reconcile traditional governance principles with the Indigenous corporate governance model imposed on Indigenous people by (non-Indigenous) law. While it may be argued that this approach is more respectful of Indigenous culture by acknowledging differences in the system of laws, it nonetheless still requires the traditional governance model to adapt (and yield, where necessary) to western style corporate governance.
The third, and more ambitious, approach is to invoke the body of law in the UN Declaration on the Rights of Indigenous Peoples which has as its cornerstone principle self-governance for Indigenous peoples and autonomy in their local and internal affairs. The Declaration was adopted by Australia in 2007. It establishes a universal framework of minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to their specific situation.
The key to the successful implementation of these standards is to build within the Australian population: a willingness to acknowledge the resilience of Indigenous peoples in overcoming the challenges they have faced; respect for the unique cultures, protocols, practices and traditions of Indigenous peoples; and a reciprocity for Indigenous communities.
At its heart, this approach embraces two or more legal systems existing within the same territory (legal pluralism). Traditional (or customary) law regimes have been, and continue to be, flexible systems of local governance capable of adapting to the changing needs and realities of the societies they govern. However, achieving a genuine recognition of customary laws with a renewed vision of legal pluralism will require strong political will and commitment, at both Federal and State level. The effectiveness of its operational mechanisms and enforcement will depend on the level of recognition and autonomy given to traditional authorities. The key issue will be the extent to which institutional arrangements and the application of customary laws will conform to the underlying principles of Indigenous legal regimes and their cultural beliefs.
Often, even in cases where there is strong recognition of customary laws and autonomy is given to traditional authorities, the tendency for government structures to undermine and supersede traditional governance structures remains a serious problem. Frequently, bureaucrats and government agencies, who are ill-equipped to handle customary procedures, are the final arbiters or authority in matters concerning communities. They are also responsible for developing and implementing operational mechanisms for the implementation of the provisions of the law. The tendency to automatically assume that bureaucrats and government agencies have the knowledge to develop appropriate institutional modalities and mechanisms as well as the capacity to handle customary procedures, defeats the very purpose of such provisions. The result is the bureaucratisation of procedures and the deformation of customary governance structures. A genuine legal pluralism framework will require appropriate institutional support mechanisms that facilitate the restructuring of the fragmented legal order and traditional governance structures, and nurture its growth in accordance with the underlying principles of traditional laws and the cultural beliefs of Indigenous communities.
An honest dialogue around these issues, coming from a place of respect for Indigenous culture and traditional governance systems, rather than a desire that they ‘yield’ to and conform with, non-Indigenous governance systems, is surely overdue.
Raelene Webb QC is one of the leading native title silks in Australia. She was appointed President of the National Native Title Tribunal for a five-year term in 2013, and has now returned to the Bar practising at Murray Chambers (WA).