What is the Mainstream? The Laws of First Nations Peoples (original) (raw)

2017, New Directions for Law in Australia

AI-generated Abstract

The paper examines the ongoing challenges faced by First Nations Peoples in Australia due to the colonial foundations of the legal system, as highlighted by the High Court's decisions, particularly in the Mabo case. It argues for a necessary shift away from Euro-centric laws towards the re-emergence of ancient Aboriginal laws. The author emphasizes the complexity of First Nations legal systems, which are relational, contrasting sharply with the segmented nature of Western laws, while calling for urgent reform that recognizes and incorporates these traditional legal frameworks to address current societal and environmental issues.

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Aboriginal laws and colonial foundation

Griffith Law Review, 2018

First Nations Peoples of this continent we now call Australia experienced the violence of colonialism for longer than the coloniser and now the Australian state is prepared to admit. A more than 150-year frontier war has been passed off as peaceful settlement. This was a lie. Terra nullius was another lie, if terra nullius was the truth why was there a frontier war. This war enabled the invasion and colonisation of Aboriginal lands. While 'justice' remains overdue, this paper examines how it is the Australian state has mythologised the rejection of terra nullius. And at the same time normalising the Australian colonial project. This paper considers how it is we might move beyond the colonial matrix of impossibility and 'skeletal foundation.'

The limits of jurisdiction: law, governance and Indigenous peoples in colonized Australia

2010

Mark Finnane, The limits of jurisdiction: law, governance and Indigenous peoples in colonized Australia,Palgrave Macmillan, reproduced with permission of Palgrave Macmillan Finnane: Limits of jurisdiction 2 The limits of jurisdiction: law, governance and Indigenous peoples in colonised Australia Mark Finnane In events well known and controversial in Australia, the last year of the Howard Government (1996-2007) saw a federal "intervention" in one of its own territories with the aim of restoring order in Aboriginal communities. Under the mandate of an "Emergency Response" the government designed a comprehensive program of policing (including military aid to the civil power), welfare reform and criminal law amendment. The response comprised both material and symbolic elements. Among the latter was a widely publicised announcement that "customary law" would no longer be an excuse for criminal behaviour. Some months later the Commonwealth Parliament amended the Crimes Act to delete a requirement passed only in 1994 (with bi-partisan support) that a court take account of "cultural background" in sentencing decisions. Today the Crimes Act directs that "a court must not take into account any form of customary law or cultural practice as a reason for: (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates." 1 Such a determined government attack on "customary law and cultural practice" more than two centuries after the British settlement of Australia prompts us to consider how such traces of Indigenous authority and even assertions of jurisdiction have survived. For it will be argued here that far from being resolved in 1836, the question of Indigenous amenability to imported British criminal law in Australia remained surprisingly open. Historians as well as jurists have generally agreed that when the New South Wales Supreme Court affirmed in the case of R v Jack Congo

Earthbound Law: The Force of an Indigenous Australian Institution

Australian Native Title law is critiqued in three moves: 1. Analysing the kinds of knowledge used in Australian Native Title law to make cases for Indigenous land tenure; 2. Analysing how a Nyikina elder narrates a legal matter of concern from his point of view; 3. Speculating about how an Indigenous 'legal' institution called the bugarrigarra was mobilised to resist extraction colonialism. These are all experimental moves in that they are partially composed around matters of concern, rather than displaying matters of fact. They are experiments that stage a learning process as they describe (that is, write about in order to add reality to) a number of different events. Keywords Aborigines Á Australia Á Native Title Á Narrative Á Experiment In order to approach an (Indigenous) earthbound law of which I have only had glimpses, I would like to take three preliminary steps: 1. look at the kinds of knowledge used (in Australian Native Title law) to make cases for Indigenous land tenure; 2. analyse how a Nyikina elder narrates a legal matter of concern from his point of view; 3. speculate about how an Indigenous 'legal' institution called the bugarrigarra was mobilised to resist extraction colonialism. These are all experimental moves in that they are partially composed around matters of concern, rather than displaying matters of fact. They are experiments that stage a learning process as they describe (that is, write about in order to add reality to) a number of different events.

Undoing the Colonial Double-Bind: Interpretation and Justification in Aboriginal Law

Review of Constitutional Studies, 2023

Aboriginal law in Canada is caught in a colonial double-bind. On the one hand, courts have acknowledged the pre-existing sovereignty of Indigenous peoples as the source of section 35 rights. On the other hand, the courts also find that Crown sovereignty is bundled together with legislative power and underlying title. The latter is treated as a non-justiciable presumption. This article aims to provide the judiciary with a way to deal with the double bind using the legal tools they already have at their disposal. We begin by contrasting two interpretive approaches courts use to legally characterize the constitutional relationship between the Crown and Indigenous peoples. We label these approaches as narrow and adaptive. We argue that by embracing an adaptive reading of the constitutional relationship, the courts can help clear the way for an inclusive form of treaty federalism that allows a culture of justification to flourish across diverse legalities in Canada

Two Laws: Indigenous Justice Mechanisms in Context

This article draws on Kociumbas' approach to inter-cultural historical debates to argue that the context of colonisation needs to be invoked in understandings of the resilience of Indigenous laws and societies and the instigation of inter-cultural justice mechanisms. Such a context gives meaning to both the strength and vulnerability of these mechanisms. This is illustrated through an examination of the operation of the Northern Territory's Warlpiri and Yolŋu laws, which draws on the perspectives of Elders in these societies, and the inter-cultural mechanisms of Law and Justice Groups and Community Courts. This research is grounded in historiographical literature, fieldwork observations, empirical evaluations and law reform in relation to these Northern Territory inter-cultural justice arrangements.

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