Hi'The following relates to traditional ) Lore and British Law ?. The sentences/ parts marked with [ and end with] are from Northern Territory Law Reform Committee: Background Paper 2. We have included a number Questions, that need to be addressed, For society with out rules and lore, sovereignty is only fictitious.
[When land that was unoccupied by European powers began to be discovered by European nations, under various doctrines of international law, these nations allotted these territories among themselves. The function of these doctrines was to prevent European nations going to war against each other]
[European ideas of international law, at the time of settlement of Australia, recognised various modes of acquiring sovereignty over land, the most relevant being: occupation of land that was terra nullius (land belonging to no-one). The legal effect of British acquisition of sovereignty over the Australian land mass was the English law applied to Australia.]
Q.1 Considering the meaning of terra nullius, Did English law also apply to the natives
1875 The Pacific Islanders Protection Act 1875 came in to beings, s. 6. Power for Her Majesty to exercise jurisdiction over British subjects in islands of the pacific ocean. to erect a court of justice for British subjects in the islands of the pacific. to make ordinances.
"It shall be lawful for Her Majesty to exercise power and jurisdiction over her subjects within any islands and places in the Pacific Ocean not being within Her Majesty's dominions, nor within the jurisdiction of any civilized power, ...to make regulations for the Government of her subjects in such islands and places, and to impose penalties, forfeitures, or imprisonment's for the breach of such regulations"
"It shall be lawful for Her Majesty, by order in council to create a court of justice and civil, criminal and Admiralty jurisdiction over Her Majesty's subjects within islands and places to which the authority of the said High Commissioner shall extend, and with power to take cognizance of all crimes and offences committed by Her Majesty's subjects within any of the said islands and places, or upon the sea, or in any haven, river, creek, or place within jurisdiction of the Admiralty. and Her Majesty..." (The Pacific Islanders Protection Act 1875)
Q.2 Were the natives of this land civilized
Q.3 Did the natives have Lore, jurisdiction to make laws for their society people of this land
Q.4 Were courts created for the natives
[As a result of various native title cases, it is clear that Australian law now recognises that Aboriginal communities possessed sovereignty in the sense of having a legal system before 1788...While Australian law recognises that Aboriginal legal systems existed, and traditional law continues to exist, at the moment, it only recognises an Aboriginal legal system for the purpose of establishing native title rights with respect to land.]
Q.5 Should the Aboriginal lore system, be recognised for other purposes, then just "land title".
[When common law lawyers and judges, have looked for law in Aboriginal societies, there has been a tendency to treat law as divinely inspired revelations and not rules deriving their content and form from social needs; to treat law as religious rules, and not as dispute resolution mechanisms. Many would query the appropriateness of such a classification.... However, it is one that has appealed to the High Court]
Q.6 Is Aboriginal Lore, a religion with rules of (Law) Lore
[The notion of sovereignty of parliament means that, at any time, parliaments can pass laws
which extinguish forever native title rights and all the legal rights of all Australians, if they have constitutional power to do so.]
The 1967 referendum gave the Australian Government power to make Laws for peace order and good Government of the Aboriginal race. Still today many Australians refer to this referendum as the big con Job, deceiving the people, as the yes vote would give the rights for Aborigine's to Vote
Q.7 Did the Commonwealth of Australia, have power to make laws for the Aboriginal people before 1967
The Victoria Constitution Act 1975, assured that all laws within the realm of England on the 25th day of July 1826 shall be applied in the administration of Justice in courts of Victoria, so for as they can be applied within Victoria. and the Parliament shall have power to make laws in and for Victoria in all cases whatsoever. This Act makes no mention of the Aboriginal race. therefor has no standing or meaning the Aboriginal people of Victoria.
The Courts-the legal profession upheld the doctrine of terra nullius, till the High Court decision in Eddie Mabo case (1992). Which may be the reason that Aboriginals where not included or mentioned at that time. Today, still many Victorians regard this Constitution Act, as being invalid, not worth the paper it is written on, because it doe's not require the peoples referendum to change or amend it, and as required under the Australian Constitution 1901
Q.8 Should the Constitution be altered ,without any referendum being put to the people
[Generally speaking, the Commonwealth and States are recognised as sovereignty entities. However, it has not been the constitutional history of Australia to recognise Aboriginal communities as possessing sovereign rights." In the case of conquered or ceded lands, the general rule was that the laws of the country continued until those laws were altered by the British parliament, or the Crown under its prerogative powers]
The two way's for Aboriginal Traditional Lore can become extinct , (1) By the Australian Parliament saying so, (if it had the Constitutional power to do so) or (2) The Aboriginal people ceded, fails to uphold their Lore when applicable or abandons the practice of Lore .
Q.9 Should Aboriginal Traditional Lore be recognised by the Courts in all cases. and not Just Native Land title issues.
[It is clear from the consultations carried out by the Committee that Aboriginal law is the important regulator of life in many Aboriginal communities in the Northern Territory. In these communities people live their lives under traditional law, and many disputes are resolved in accordance with the Aboriginal legal system. For such people there is only one legal system and it is Aboriginal. The existence of Aboriginal legal systems in the Northern Territory and general discussion of their key features, is set out in the Committee's Background Paper 1:Aboriginal communities and Aboriginal law in the Northern Territory].
[It is sometimes said that an Aboriginal person can only be truly said to be bound by traditional law if he or she is living a wholly "traditional" lifestyle, that is, no electricity, no fridge and no gun for hunting. This point of view fails to recognise the right of Aboriginal people to determine how they will exercise their right to life. It is also contrary to the way the High Court looks at native title rights and interests.]
[A person does not cease to exercise a traditional right by exercising the traditional right in a contemporary way. Accordingly, traditional laws may still operate in Aboriginal communities that have electricity and other material manifestations of contemporary life]
Q.10 Should an Aboriginal person be denied the rights of protection and practice of traditional Aboriginal Lore, just because that person now lives in a city or suburb.
In the Southern state, Victoria it now appears that the Victorian Government has formed a body know as The Victorian Aboriginal Justice Advisory Committee (VAJAC) is the Government primary source of advice from, on justice related issues. However due to employment contracts which limits the rights to open raise issues that are solidly enshrined in Aboriginal Lore. but are in conflict with the legislated States laws, which have created an unnecessary burden on the Aboriginal people.
For example, the traditional Lore, (translated) "if it came for the Earth. and grew in your country, it was yours to do as you please" Unfortunately, some Victorian Aboriginal organisation disregard the old lore, and support the state legislated laws, that has created an unnecessary has burden on the Aboriginal people of Victoria. Now 2010 the issue is now before the Courts of Victoria.
Q.11 If a state law, has or is causing an unnecessary hardship on the Aboriginal people, then should traditional lore be considered, as the supreme Law for the Aboriginal people.
[The common law has always recognized the existence of certain "customs" as "local common law", that is, the common law of a particular part of England, even if it is inconsistent with the general common law. Courts, applying the common law, have a long history of recognising native "custom" as part of the common law itself. A number of specific rules have developed. Courts decline to apply a native custom if it is inconsistent with English law notions of "natural justice" Customs are not assumed to be frozen in time. They can change as long as they retain their essential]
[Under the common law there is a well defined process for ascertaining the content of espect of Papua New Guinea, while it was a territory of Australia. Indeed since 1976 the Aboriginal Land Commissioners have been setting out tests for finding Aboriginal law.... However, Australian courts have not recognised any traditional law under the law of custom].
Q.12 Should the Australian courts recognised traditional Lore, as an old custom
I thank you taking the time to read this so far, it would be appreciated in the reply, if you type in under the Q ? Yes - No or Don't know. The (the last) Aboriginal at the Top End now find need of support the maintain their tradition lore and custom. in reply you will be forwarded some further questions, that need to be addressed.
Complied by
Les McDonald,
Chief Lore Officer
Aboriginal Embassy Victoria
Email aboriginalembassyvic@yahoo.co.an
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3 comments:
Q.1 Considering the meaning of terra nullius, Did English law also apply to the natives
A. Yes. the doctrine of terra nullius assumes that Aborigines did not consciously make law and thus automatically became subjects of the Crown with the rights and protections of european law.
Q.2 Were the natives of this land civilized
A. No. if civilisation means being governed exclusively by men and women under their supervision.
Q.3 Did the natives have Lore, jurisdiction to make laws for their society people of this land.
A. Yes. Aborigines celebrate customary law, 'Lore' in a legal sense.
"in very broad terms, Aboriginal customary law is constituted by a body of rules, values and traditions which are accepted as establishing standards or procedures to be followed and upheld".
http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r96chp3
european law comes from customary law.
much of the world's customary law is similar with regard to personal and property rights and public safety.
the remainder is specific to the regions from which it emerged.
Aboriginal customary law and european law share similar purpose.
terra nullius denied local knowledge, not knowledge held in common.
Australia's High Court overturned terra nullius with the Mabo decision in 1992.
customary law specific to Aboriginal communities is now recognised.
Aboriginal customary law is exactly the same as european law with regard to terra nullius.
europeans do not consciously acknowledge a women's jurisdiction so Aboriginal women’s customary law seeks to protect access to women's sacred sites.
but whereas Australian courts may now consider Aboriginal men's customary law, without a women's jurisdiction pleas of Aboriginal women's customary law are problematic, as with the Hindmarsh case in South Australia.
Australian courts can consider local custom.
local custom tested at law prohibits men from bathing at the coogee public women's pool.
"SYDNEY -- An anti-discrimination tribunal on March 31 dismissed as “vexatious” and “frivolous” against the Randwick and Coogee Ladies Swimming Club and the Randwick Council over McIver's Baths (Coogee women's pool).
For over 70 years the pool has been open exclusively to women. Two years ago, Coogee resident Leon Wolk began campaigning for access to the pool, claiming that opening the baths to men would “put women on a level of equality, of responsibility”. " http://www.greenleft.org.au/1995/183/12223
reconciling Aboriginal customary law and european law requires the recognition of a women's jurisdiction, achieved with referenda amending state and federal constitutions to provide for a parliament enacting law by agreement between a women's legislature and a men's legislature presided over by distinguished elders accompanied by courts of women's and men's jurisdiction.
Q.4 Were courts created for the natives
A. Yes. courts were created for all subjects of the Crown, including Aborigines under terra nullius, albeit that justice has been delivered exclusively in a men's jurisdiction which is inherently unfair and unjust.
race specific laws, acts and courts, as with those for Aborigines, are intended to advantage the target race and are usually optional should disadvantage be perceived.
the 1967 federal referendum gave the High Court the power to remove both federal and state laws, acts or courts which can be shown to disturb the 'peace, order and good Government of the Aboriginal race'.
race specific laws, acts and courts are racist if the target race is disadvantaged and not offered fair compensation.
Q.5 Should the Aboriginal lore system, be recognised for other purposes, then just "land title".
A. Yes. Aboriginal customary law is already recognised for purposes other than native title, as with sentencing issues in the Northern Territory.
Q.6 Is Aboriginal Lore, a religion with rules of (Law) Lore
A. Yes. all customary law can be considered a religion, the accumulation of knowledge through the medium of creation mythology, prior to the secular interpretation of law through the medium of print.
Q.7 Did the Commonwealth of Australia, have power to make laws for the Aboriginal people before 1967.
A. No. power to make laws for Aborigines resided exclusively with the States.
Q.8 Should the Constitution be altered ,without any referendum being put to the people
A. No. a referendum of the people is the only way to amend Australia's constitution to enable a women's jurisdiction in the reconciliation of european and Aboriginal customary law.
Victoria's Constitution (Parliamentary Reform) Act 2003 also provides for a referendum of the people to change core provisions of the state's Constitution.
the Constitution Act 1975 (Vic), which enables Victoria's constitution, contains no specific mention of Aborigines on the assumption of terra nullius.
the absence of mention of Aborigines from the Constitution Act 1975 (Vic) does in no way impute Aborigines are exempt from any provision of the Constitution.
the Mabo decision is the 'piece of paper' which gives Victoria's Constitution the right to govern Aborigines in consideration of Aboriginal customary law.
a treaty would reconcile the right of european law to govern Aborigines in consideration of laws held in common.
Q.9 Should Aboriginal Traditional Lore be recognised by the Courts in all cases. and not Just Native Land title issues.
A. Yes. Aboriginal men's customary law is already recognised in all cases where it can be shown to exist.
Aboriginal women's customary law can't be recognised without a women's jurisdiction.
Q.10 Should an Aboriginal person be denied the rights of protection and practice of traditional Aboriginal Lore, just because that person now lives in a city or suburb.
A. No. and Aboriginal men aren't.
only Aboriginal women are denied the rights of protection and practice of customary law.
Q.11 If a state law, has or is causing an unnecessary hardship on the Aboriginal people, then should traditional lore be considered, as the supreme Law for the Aboriginal people.
A. Yes. and it is, to the extent that consideration extends to Aboriginal men's customary law only.
customary law applies to specific customs not to customs held in common with others.
there is no evidence to indicate cannabis cultivation is specific to the traditions of Aboriginal communities.
communities all over the world cultivate medicinal plants, some cannabis related, and assume rights over medicinal plants introduced into their regions.
laws governing cannabis cultivation concern customs held in common with others not customs held exclusively by Aborigines.
a plea of Aboriginal customary law over cannabis cultivation seeks to disadvantage others who also have no evidence to indicate cannabis cultivation specific to their traditions.
again, Australian courts can consider local custom.
an Aboriginal resident of Kempsey appears to have achieved success with this approach.
"He makes his medical cannabis tincture from marijuana he grows himself. Caught for cultivation 12 years ago, he went to court in Kempsey, but emerged with what amounted to an exemption to grow cannabis for medical use."
http://www.smh.com.au:80/national/oneman-cannabis-van-raises-queries-of-legality-20100125-mukq.html
if laws prohibiting the cultivation of cannabis disadvantage Aborigines ONLY, the High Court can remove them or compensate Aborigines with access to customary law.
but laws prohibiting the cultivation of cannabis disadvantage EVERYONE, prohibiting all citizens access to a herb with medicinal properties.
providing access to a small number of plants balances concerns over the chronic health conditions like acute psychosis and depression which overuse irrespective of source has been shown to cause.
the Commonwealth, through its territories, has taken the lead in recognising this disadvantage.
the remedy in Victoria for laws which disadvantage cannabis cultivators lies with the Victorian Parliament.
the courts can only interpret the law as it stands and the High Court would be unlikely to conduct a lengthy examination of disadvantage which has already been established by the Commonwealth and at least one state, South Australia.
Q.12 Should the Australian courts recognised traditional Lore, as an old custom.
A. Yes. and they do, with respect to Aboriginal men's customary law.
only Aboriginal women are denied the rights of protection and practice of customary law.
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