Indigenous Legal Traditions: Looking at ways to reconcile aboriginal law and common law. A practical and principled approach.

Abstract

It is rather late in the day to say that customary law and aboriginal law does not form part of the common law system in the twenty-first century. The adoption by the United Nations of the Declaration of Indigenous Rights last year, and barely a fortnight ago the apology by Australia to the lost generations of Aboriginal children, are examples of the tide flowing towards recognition of more and more indigenous rights. With this sort of development in the political and social arena, the common law cannot insulate itself from this change.

The first task in reconciling Aboriginal law and the common law is to identify aboriginal law. This will involve reverting to historical and contemporary written and oral sources, as well as an understanding of the original aboriginal words themselves. The task will also inevitably involve labeling of indigenous customary practices or social phenomena as in fact law for purely twenty-first century purposes.

When one is faced with any competing, conflicting or even consistency between aboriginal law and the common law, we must look to the various principles, interests and values that such laws are based upon. This is to enable a proper weighing of those principles. Certain principles will ascend others depending upon the facts and circumstances. The process of weighing will ultimately involve value judgments on the part of the examiner.