Australian indigenous law on land and sea

MELBOURNE (JP): Like adat (traditional) communities in Indonesia, the Australian aboriginal and Torres Strait Islander people have developed their own legal system. This indigenous law operates among the people across the mainland and Torres Strait Islands. There are degrees of variation of this law in individual communities.

Indigenous law provides all members of a community with rules of behavior to assist smooth functioning of the community. They have a council of elders, consisting of senior and respected men and women, to interpret the law and resolve disputes.

One of the substantial parts of indigenous law is determining management of the land and sea between individuals and kinship groups. Land is owned communally by traditional communities who have spiritual connections with it. These people derive their spiritual well-being and livelihood from the land and sea.

Their relationship to the land and the sea is more like mother and children, because the land and the sea are regarded as the givers of life and the guardians of souls.

If it is not possible for the people belonging to the land and the sea to conduct their daily activities there, because they work somewhere else, it is important for them to return regularly to conduct their spiritual ceremonies to maintain the wholeness of their souls and renew their relationship with their spiritual source. Those who still live tribal lives hunt, fish, conduct regular ceremonies and generally enjoy life on their land.

The communities cannot transfer ownership of the land or the sea to other people because basically they do not own the land or the sea. It is the other way round: they belong to the land and the sea.

With recognition by common law of native title, various communities or tribes have applied for native title over their traditional lands, in order to maintain access to the lands. The native title held by a particular community or tribe is not transferable. The collective nature of mutual ownership between the community and the land makes transferring the native title rights within the community unnecessary, and perpetuity of the mutual ownership disallows the rights to be transferred to another community. A community either belongs or does not belong to a particular land.

Native title gives the communities rights of access and the rights of negotiation. Native title holders can negotiate the use of their lands by people other than members of their communities, such as the agreement in Cape York in far north Queensland, signed by Aboriginal people and pastoralists in 1995.

While the Native Title Act 1993 gives the titleholders rights of negotiation, it does not give them rights of veto. It thus leaves the path open for the title-holding community to negotiate coexistence with other parties subject to suitable compensation.

Nonaboriginal people are inclined to believe that "compensation" is the key when dealing with Aboriginal communities. The "10 point plan" bill proposed by the Howard government is an example. In cases where native title is extinguished by pastoral leases, the communities, after proving their connection with the lands -- which in itself is no mean feat in the legal process -- supposedly can claim compensation. The fact that they lose access to their spiritual sources has been completely overlooked.

It is crucial, therefore, to fix the mismatch between the modern society's concept of land as a commodity on which to build and acquire wealth, and the traditional Aboriginal belief that land is the source of life and soul, not something to be sold or traded.

-- Dewi Anggraeni