Aboriginal Customary Laws: Discussion Paper


This project commenced in late 2000 by the Law Reform Commission of Western Australia, arose from a proposal to investigate whether there may be a need to recognise the existence of Aboriginal customary laws and have regard to those laws within the Western Australian legal system. Whilst the Commission is mindful that the structure of the paper reflects a more Western conception of law then is commonly found in Aboriginal society, the terms of reference require it to consider Aboriginal customary laws in the context of the current WA legal system. The paper is presented in ten parts. Part I provides an overview of the Commission’s research methodology and management of the reference. Part II provides some background and statistical information on Aboriginal peoples in Western Australia and introduces some general findings of the Commission from its consultative visits to Western Australian Aboriginal communities. Part III addresses the question, ‘What is customary law?’ and discusses issues and methods of recognition of Aboriginal customary law in the Western Australian context. Part IV examines the concept of Aboriginal customary law in the international arena, including in the human rights context. Part V deals with the Commission’s substantive investigation into the interaction of Aboriginal people and the criminal justice system and discusses the opportunities for recognition or expression of Aboriginal customary law within that system. The discussion in Part VI deals with Aboriginal customary law and the civil law system, while Part VII examines the significance of Aboriginal customary law in the family context. The recognition of customary law in relation to hunting, fishing and gathering, and associated land access issues is examined in Part VIII; while Part IX examines Aboriginal customary law in relation to rules of evidence and court practice and procedure. Part X explores Aboriginal community governance and discusses what is being done (and what more can be done) to maximise Aboriginal peoples’ participation in the decision-making processes that affect their daily lives. Throughout the document, the Commission makes a number of proposals for reform, and invites submissions in relation to these.

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© State SolicitorÕs Office ALL RIGHTS RESERVED Law Reform Commission of Western Australia Level 3, BGC Centre 28 The Esplanade Perth WA 6000 Australia Telephone: 011+61+8+9321 4833 Facsimile: 011+61+8+9321 5833 Email: lrcwa@justice.wa.gov.au Website: www.lrc.justice.wa.gov.au ISBN: 1 74035 053 7 Printed by Quality Press, Perth, Western Australia Portions of text in this Discussion Paper may be reproduced with due acknowledgement. Except for the purposes of researchÑand subject to the provisions of the Copyright Act 1968 (Cth)Ñall other forms of graphic or textual reproduction or transmission by any means requires the written permission of the Law Reform Commission of Western Australia. This document can be provided in alternative formats for people with disabilities.