Australian indigenous law on land and sea

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