Essay Aboriginal Customary Laws and Australian Contemporary Laws

Prior to the arrival of the first fleet in 1788, it is estimated that there were around 750, 000 Indigenous Australians living in Australia. Between 1788 and 1900 there was a depopulation of Indigenous Australians due to not only conflict and violence from the Europeans, but particularly the introduction of new diseases from them. It was undoubtedly true that in the first decades the spread of unknown diseases was rapid and the resistance was so low it resulted in higher death rates. The decreasing population resulted in demoralisation of Indigenous Australians and overruling by the Europeans. This overruling resulted in British Law, which subsequently proceeded to established acts of legislation such as the Aborigines Protection Act 1909 (NSW). But why was this legislation formed? According to the

In Aboriginal culture, the land is life and culture cannot be separated from the land.

Aboriginal people struggled to uphold their traditional customs and rituals as they did not have the rights and access to their own land prior to and post federation in 1901. Healey ed. (2002), experienced editor and author states, when the British settlers arrived they overlooked the fact that Aboriginal people claimed and were sustaining the land of Australia. Britain had declared Terra Nullius despite their knowledge of the inhabitants of the land, the traditional owners. Throughout settlement, policies were put in place by the colonists to minimise land used for spiritual reasons by Aboriginal Australians (Korff, 2016). Hillman (2001), educator and author, infers that with this their culture was dramastically changed. Aboriginal people fought back for their rightful land, but their protests were insignificant

When European colonists settled in Australia they treated the Aboriginal people extremely different to that of their fellow white men. The Aboriginals were not seen as first class citizens through the European eye and as a result were victims of extreme oppressions and had nearly no rights or freedoms. Since then Aboriginal people have fought to be treated equally to the white men through various different ways. I will discuss the previous struggles faced by the Aboriginals, the Australian strife for equality and finally the level of success and degree of rights and freedoms given to Aboriginals in modern Australia.

Under the Civil Law system, the laws are written and codified that the judges have to follow verbatium. Whereas, under the common law system that is followed by Australia, India and the United Kingdom, the laws are codified, doctrine of precedents is followed but the higher courts have the power to over-rule old judgements and existing law in cases where the law breaches the basic structure. (Peterson)

The Aboriginal culture believes that their land was was created by the ancestor spirit of the dreaming, and people were formed by that land and are connected and linked to it. This relationship to their land gives them their social identity and connects them within their clan. The loss of their language and mother tongue has made it extremely impossible to pass on beliefs and traditions in an authentic way.

The Canadian native aboriginals are the original indigenous settlers of North Canada in Canada. They are made up of the Inuit, Metis and the First nation. Through archeological evidence old crow flats seem to the earliest known settlement sites for the aboriginals. Other archeological evidence reveals the following characteristics of the Aboriginal culture: ceremonial architecture, permanent settlement, agriculture and complex social hierarchy. A number of treaties and laws have been enacted amongst the First nation and European immigrants throughout Canada. For instance the Aboriginal self-government right was a step to assimilate them in Canadian society. This allows for a chance to manage

If there had been to law for the aboriginal and the Australia there would be much better for the aboriginals such as following their own culture and they have a better understanding of the past.

However, the Native Title Act 1993 gives the indigenous Australians very limited rights. There is a requirement that the native title can only exist when the indigenous people can prove a substantial bond or conneciton to their land through their traditional customs. In particular, s 223 of the Native Title Act 1993 (Cth) requries an inquiry to be made as to whether the law and customs can be described as traditional laws and customs. Such threshold is relatively high and hard to prove, and the mere fact that the indigenous people had lived there for a long time is not sufficient to satisfy the

Domitus Ulpian said, “Justice is the constant and perpetual will to allot to every man his due.” Justice is what allows a society to operate and function. It is upheld and enforced by a system of rules known simply as the law which are officially recognised and imposed on states to govern behavior. Some form of law has always existed in human history whether it be in an unwritten customary form or in a written format like a constitution (Milgate P, 2013). The law and legal system around the world has developed throughout history to the point that there are many different categories and sub categories of law. In modern day Australia, the legal system has been modelled after the English system. This is a combination of statute and common

The Aboriginal and Torres Strait Islander people have had many impacts on their culture since European settlement in Australia. The Aboriginal and Torres Strait Islanders were seen to be savages with no civilisation and as such Australia was seen as ‘Terra Nullius’. With European settlement Aboriginal and Torres Strait Islanders saw a loss of their land and culture, labour exploitation, introduced diseases, change of diet and a loss in their rights as a citizen and as a human being. Many laws and policies were introduced which controlled an Aboriginal and Torres Strait Islanders life, many things for which we take for granted today. Things such as residence, employment, marriage, social and daily life were all restricted. Most notably was the laws introduced that allowed Aboriginal and Torres Strait Islander children to be forcibly removed from their families.

Aboriginal law had lasted for hundreds of years before white settlement of Australia in 1788. The laws were based from the Dreamtime and were formed by ancestors, spirits and Aboriginal beliefs. These laws were passed down by a word-of-mouth tradition and as there were many different tribes consisting of many clans spread out over a large area, separate laws were adapted to specific tribes and areas. Aboriginal customary laws were developed and based on the aboriginal relationship to the land as well as the view that property (land) and individual belongings were owned by the community as a whole. All items were collectively used and land was not owned by a particular tribe.

In the Aboriginal tradition, societal practices and customs are passed from one generation to the next by

Australian Aborigines have had a traditional relationship with their land since they first came to the Australian continent somewhere from 40,000 to 60,000 years ago to 120,000 years ago (9:9). Before Europeans came and settled the same land, the Aborigines had their own law system, trading systems, and way of caring for their land (12:1-2). Then the First Fleet of Europeans landed at Botany Bay in New South Wales in 1788. The expedition lead by the new Governor Phillip, but directed by King George the Third, was told to endeavor by every possible means to open intercourse with the natives, and to conciliate their affections, enjoining all our subjects to live in amity and kindness with them. And

Land is considered mother earth to Indigenous Australians, the source of all creation, yielding all the necessities of life- food, clothing and shelter dated back since over 40,000 years ago when Aborigines first came to Australia. In present period, Indigenous still are spiritually linked to the land rights of this country, which will be further discussed and analysed throughout this ethnographic report. Shortly after the arrival of the Indigenous, the white settlement invaded on the 26th January 1788. Although the white settlement almost created the extinction of indigenous, still in the 21st century their culture and traditions are practiced and recognised. The indigenous have a different connection with the land, a more spiritual connection