Indigenous Customary Law

There is alarming number of Indigenous Australia’s currently serving time in prisons and from 2001 the numbers has been increasing. According to Krieg (2006) Indigenous incarceration may be the direct consequences of inadequate housing, mental health, substance use, family violence and disability.

To begin understanding the issues Native Americans often face in the criminal justice system and why a comparison must be made. These comparisons are over concepts, the European-based laws and Native American perspective on law how it should function and its process. The European’s consists of a vertical style while the Native American’s way of thinking, religious norm, practice, and the law is intertwined into a horizontal model. Knowing the difference in perceptions concerning law and its structure plays a significant role in understanding all the disadvantages Native Americans have faced in the European’s vertical system. Native Americans horizontal perspective has multiple working and intertwined parts as a way creating their own justice system.

This essay looks at Indigenous Australians in relation to the institution of ‘Criminal Law’. In this context, criminal law refers to legal processes such as police questioning, investigation and detainment as well as arrest, custody and bail. It also encompasses associated court procedures up to the point of sentencing. The focus will be to first outline the importance of criminal law to Indigenous Australians and then provide a critical analysis of the unique experiences and barriers that this group encounter in accessing criminal law in a positive way. Following this analysis, the development of possible ways to improve Indigenous access to criminal law will be discussed. Particular attention will be given to the way in which Indigenous Australians are affected by the transition of our modern justice system toward broader social justice concepts that incorporate risk management of potential criminal behaviour. From this discussion a conclusion will be drawn as to whether or not Indigenous Australians enjoy equality of criminal law and whether the structural elements of the law itself perpetuate Indigenous injustice and disadvantage.

The Aborigines Protection Act 1909 (NSW) was a law that changed Indigenous Australian lives forever. The act enabled the New South Wales Board for the Protection of Aborigines to essentially control the lives of Aboriginal people. It was the Aborigines Protection Act 1909 (NSW) that had major provisions that resulted in the containment and suffering that Aboriginal people endured. This suffering included the practice of forcible removing Indigenous children from their families. These major provisions help us understand what the Aborigines Protection Act 1909 (NSW) involved and the impact it has had on the daily lives and cultures of Indigenous Australian peoples today.

We are learning that when genuine 'Indigenous' Justice is hiding under the cloak of Western paradigms, we continue to see the rising population of Indigenous peoples--especially Indigenous women--in prisons. Our programs and rehabilitative initiatives remain under Western paradigms, even when painted with the brush of 'restorative' or 'indigenous'

The rights and freedoms of Aboriginals have improved drastically since 1945 with many changes to government policy, cultural views and legal rules to bring about a change from oppression to equality. Unfortunately on the other hand, some rights and freedoms have not improved at all or have even worsened.

Minister if you will turn your attention to the following chart, which shows a comparison of imprisonment rates between different countries. It is thoroughly disappointing to see that the Aboriginal’s represent Australia with such substantial numbers. Minister there are alarming numbers the gravity of this situation transfers to other areas. Furthermore Western Australia the Aboriginal imprisonment rates are at an astounding 3,741, in comparison to the Aboriginal people the rest of Australia at

After this time, many atrocities occurred, such as the fact that Aboriginals were often killed for sport, and massacres such as Myall Creek were occurring, where 28 Aboriginal men, women and children were murdered near Myall Creek Station in 1838. There was also the problem of the Stolen Generation, when Aboriginal children were forcibly taken from their homes to be raised as though they were white. It was only recently in 2008, that Kevin Rudd, the Prime Minister of Australia at the time, apologised for the actions that the government had undertaken. In another apologetic move, Prime Minister Paul Keating delivered a powerful speech regarding the fact that Aboriginal Communities were still segregated despite the fact that laws had been changed a number of years ago. This shows that the idea of atonement by Australia is quite a new topic. Does this prove the challenges that Aboriginal’s faced nearly 200 years ago are still present in today’s society? It was enough to force the Aboriginal men, women and children to begin act in support of their rights.

The over-representation of Indigenous people in the criminal justice system is a large problem in society and reasons as to why this may be occurring need to be examined (Walker & McDonald, 1995; AIC, 2013). Indigenous Australians make up less than three per cent of the overall Australian population, however Indigenous people are over-represented in Australian prison populations, with imprisonment rates that are around 12 times those of the rest of the Australian population (AIC, 2013). Rates of over-representation are even higher in juvenile detention, with a 10-17 year old Indigenous person being around 24 times more likely to be in detention than a non-Indigenous person of the same age (AIC, 2013; Cunneen & White, 2011). Indigenous Australians overrepresentation in the criminal justice system is usually due to offences pertaining to violence and public disorder (ABS, 2010; Hogg & Carrignton, 2006). This is endorsed by the fact that Indigenous Australians currently make up 40 per cent of those imprisoned for assault offences (AIC, 2013). The over representation of Indigenous Australians in the criminal justice system may be attributed to a variety of reasons, known as risk factors (AIC, 2013).

Provision [SCRGSP], 2005; Jeffries and Bond, 2012). It is also widely discussed that there is an overrepresentation of Indigenous Australians in the criminal justice system itself (Jeffries and Bond, 2009), representing up to one quarter of prisoners in Australia (Makkai and Payne, 2003; Payne, 2005). This essay will address the current issues that Indigenous Australians face within the criminal justice system, particularly, with courts. The aim of this essay besides addressing these issues will also be to provide suggestions or alternatives that may help resolve the presented issues and improve the experience for Indigenous Australians in court.

The Effectiveness of the Law in Achieving Justice for Indigenous People In relation to Australia, the term ‘Indigenous peoples’ refers to two distinct cultures of people who inhabited the land prior to European settlement – The Aboriginals and the Torres Strait Islanders. This population declined dramatically over the 19th and early 20th century due to the introduction of new diseases from European settlement, Government policies of dispersal and dispossession, the era of protection, assimilation and integration causing a cultural disruption and disintegration of the Indigenous peoples. In the 20th century the recognition and protection of Indigenous peoples land rights and human rights have been

Over the past years, Canadian courts have repeatedly urged that aboriginal title conflicts should be resolved through negotiation, rather than litigation. The primary reason being that litigation is costly and time-consuming. For example, the decision for the Delgamuukw case took a duration of thirteen years. Furthermore, litigations that deal with the issue of aboriginal rights and title are “generally narrowly focused” and “ultimately leaves the question [posed about] how aboriginal rights and title apply unwarned.” For instance, the courts of Canada repeatedly failed to come up with a clear definition on the legal scope of Aboriginal rights despite the fact that they have several opportunities to do so. The Delgamuuku case clearly illustrates this when the Court “did not define how aboriginal title applied for the First Nations involved.” Instead, the Court came to the conclusion that a new trial was required, which ultimately will be more expensive and take longer.

When looking at the current criminal justice system in Canada, New Zealand, and Australia, it is clear that it has failed in the treatment of aboriginal people. This problem has strengthened the idea of restorative justice as a replacement of the traditional system. When looking at implementing circles into that realm of restorative justice, there needs to be an agreement that their practices are diverse, and therefore not to force the issue. Many traditional practices are very spiritually based, and it needs to be evident that

According to the Cornell University Law School’s ‘Legal Information Institute’, self-determination ‘denotes the legal right of people to decide their own destiny in the international order’. As a major concept of international law, self-determination gives people the right to control their own fates under certain fundamental criteria, and can be claimed by a minority that bases its lifestyle on an ethnic identity that is distinguishable from regular society, with a strong desire for cultural preservation. It has been considered to be a framework with the ability to guide legislative reforms within Australia, with an underlying ‘rights- based’ approach to Indigenous Issues. Self-determination is considered to be an important aspect of the legal system in regards to Indigenous Peoples, as it provides them a process of choice, to guarantee the practice of Indigenous social, cultural and economic needs.

Throughout the history of Canada, we have acknowledged Indigenous cultures as being the first people of Canadian land. However, society has not treated them as equal members of society since the first explorers settled. The Euro-Canadian culture has impacted the Indigenous people negatively; as a result injustice between the two cultures has developed and inequality has widened as the two cultures interact more frequently. Lisa Monchalin (2016), author of the text The Colonial Problem: An Indigenous Perspective on Crime and Injustice in Canada, noted multiple reasons how Aboriginal people are discriminated against in society, and how they are over-represented in Canadian correctional system. In society, according to Aylsworth, L., and Trovato, F. (2012) of The Canadian Encyclopedia, the indigenous population was approximately 4.3% of the total Canadian population, yet, the 2015-2016 Annual Report of the Office of the Correctional Investigator noted “an unabated increase in the number of Indigenous people behind bars, a rate now surpassing 25% of the total federal incarcerated population” (2016, n.p.). This raised the question as to why there was such a blatant over-representation of Indigenous people in the criminal justice system. Indigenous history has been speckled with injustices, hardship, discrimination, racism, and have been on the receiving end of multiple attempts to rid Canada of Indigenous ways and people. The history of these