Australian indigenous law on land and sea<\/p>\n
MELBOURNE (JP): Like adat (traditional) communities in
\nIndonesia, the Australian aboriginal and Torres Strait Islander
\npeople have developed their own legal system. This indigenous law
\noperates among the people across the mainland and Torres Strait
\nIslands. There are degrees of variation of this law in individual
\ncommunities.<\/p>\n
Indigenous law provides all members of a community with rules
\nof behavior to assist smooth functioning of the community. They
\nhave a council of elders, consisting of senior and respected men
\nand women, to interpret the law and resolve disputes.<\/p>\n
One of the substantial parts of indigenous law is determining
\nmanagement of the land and sea between individuals and kinship
\ngroups. Land is owned communally by traditional communities who
\nhave spiritual connections with it. These people derive their
\nspiritual well-being and livelihood from the land and sea.<\/p>\n
Their relationship to the land and the sea is more like mother
\nand children, because the land and the sea are regarded as the
\ngivers of life and the guardians of souls.<\/p>\n
If it is not possible for the people belonging to the land and
\nthe sea to conduct their daily activities there, because they
\nwork somewhere else, it is important for them to return regularly
\nto conduct their spiritual ceremonies to maintain the wholeness
\nof their souls and renew their relationship with their spiritual
\nsource. Those who still live tribal lives hunt, fish, conduct
\nregular ceremonies and generally enjoy life on their land.<\/p>\n
The communities cannot transfer ownership of the land or the
\nsea to other people because basically they do not own the land or
\nthe sea. It is the other way round: they belong to the land and
\nthe sea.<\/p>\n
With recognition by common law of native title, various
\ncommunities or tribes have applied for native title over their
\ntraditional lands, in order to maintain access to the lands. The
\nnative title held by a particular community or tribe is not
\ntransferable. The collective nature of mutual ownership between
\nthe community and the land makes transferring the native title
\nrights within the community unnecessary, and perpetuity of the
\nmutual ownership disallows the rights to be transferred to
\nanother community. A community either belongs or does not belong
\nto a particular land.<\/p>\n
Native title gives the communities rights of access and the
\nrights of negotiation. Native title holders can negotiate the use
\nof their lands by people other than members of their communities,
\nsuch as the agreement in Cape York in far north Queensland,
\nsigned by Aboriginal people and pastoralists in 1995.<\/p>\n
While the Native Title Act 1993 gives the titleholders rights
\nof negotiation, it does not give them rights of veto. It thus
\nleaves the path open for the title-holding community to negotiate
\ncoexistence with other parties subject to suitable compensation.<\/p>\n
Nonaboriginal people are inclined to believe that
\n\"compensation\" is the key when dealing with Aboriginal
\ncommunities. The \"10 point plan\" bill proposed by the Howard
\ngovernment is an example. In cases where native title is
\nextinguished by pastoral leases, the communities, after proving
\ntheir connection with the lands -- which in itself is no mean
\nfeat in the legal process -- supposedly can claim compensation.
\nThe fact that they lose access to their spiritual sources has
\nbeen completely overlooked.<\/p>\n
It is crucial, therefore, to fix the mismatch between the
\nmodern society's concept of land as a commodity on which to build
\nand acquire wealth, and the traditional Aboriginal belief that
\nland is the source of life and soul, not something to be sold or
\ntraded.<\/p>\n
-- Dewi Anggraeni<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/australian-indigenous-law-on-land-and-sea-1447893297", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }