Lanhupuy is the Member for Arnhem in the Northern Territory Legislative Assembly. As an Aboriginal representing many traditional Aboriginal people and a member of a Westminster-style law-making body he is in a good position to talk about the application of the two different sorts of law.
“”In Aboriginal eyes, European law meanders like a river on a flood plain that has no barriers to constrain its flow or direction,” he said in Darwin last week. “”Although we can see merit in having a law that can adapt to changing circumstances, it is in complete contradiction to Aboriginal law and custom, where practices and beliefs have carried on for many thousands of years in much the same way.”
Aboriginal society “”has a complex and intricately developed set of laws and a cultural relationship which is based not only on the individual, but also the family and community.”
It is also based on common ownership of the land. Without land, there is no Aboriginal law. The land gives it its permanence. It doesn’t change, unlike Western law which you can change if you don’t like it.
As the cries rightly go up between now and 2001 for a treaty, Aboriginal sovereignty and national land rights, the nature of Aboriginal law and where and to whom it applies are likely to get more scrutiny. This is already happening as a result of the üMabo@ decision earlier this year.
Bill Neidjie, the leader of the Gagudju people, is quite adamant about the immutability of Aboriginal law. “”The law stays,” he says.
This means that Aboriginal law is profoundly undemocratic. The majority can’t change the law. That is quite understandable when the law has been applied over 2000 generations to enable a people to survive in a very hostile land: laws like not allowing camps near certain places, nor young people to eat anything but the shoulder of geese, and so on.
Further, the enforcement of Aboriginal law can be quite violent: there are no jails or community service orders (everyone is already in community service). Death and spearing are among the punishments. Moreover, a lot of Aboriginal law is secret, both against groups within a community and against people outside the community. And the many different Aboriginal tribes have different laws (not to mention different languages, culture and customs) which often overlap territorially or shift from one territory to another from time to time.
These things make the calls for a separate Aboriginal state contradictory. One separate Aboriginal state based on, say, all remaining unalienated Crown land, would of itself necessitate such radical changes to the many different traditional Aboriginal laws and cultures (such as elections and an equal role for women) as to be self-defeating.
That does not mean that the state, territory and federal constitutions cannot give recognition to Aboriginal law.
A paper on recognition of Aboriginal Customary law was tabled in the Northern Territory Legislative Assembly earlier this year. It said Aboriginal law and custom continues in practice and influences the daily lives of many Aborigines and they have expressed the desire for some formal recognition of it.
Wes Lanhupuy says it is not simply a question of carving out areas of land and letting Aboriginal law and culture apply there to the exclusion of white law.
He says Aborigines want Aboriginal self-management wherever possible based on links with traditional tribal land, law and culture, but recognise it must be within the framework of the wider community.
The essential point is not whether the state and federal constitutions should recognise Aboriginal law and custom, but how should they do it.
There is no need for all aspects of Aboriginal law to be recognised, nor for it to apply generally to everyone on certain territory, nor for its general application to certain people wherever they are or may go.
Selective application will mean those aspects of Aboriginal law which ensure the continuation of culture and a sharing of the spoils of the land in a way that prevents exploitation of some individuals by others and of over-exploitation of the land can be actively preserved.
Lanhupuy says the questions of Aboriginal law’s territoriality, in what circumstances it will apply instead of white law, and who or which institutions should apply it have to be worked out.
They can be. Working out things of that complexity with fairness and justice is the sort of task modern Australia should want to do, and take pride in the result when it’s done.