M4 - Learner Manual

The term 'lore' refers to the customs and stories the Aboriginal peoples learned from the Dreamtime. Aboriginal lore was passed on through the generations through songs, stories and dance and it governed all aspects of traditional life. It is common to see the terms 'law' and 'lore' being used interchangeably. 

http://www.workingwithindigenousaustralians.info/content/Culture_4_The_Law_and_the_Lore.html  

Law: Also known as Lore. Handed down by the Creation Ancestors and upheld by Aboriginal communities for thousands of generations, Law includes the accepted and traditionally patterned ways of behaving and shared understandings relating to land, language, ways of living, kinship, relationships and identity. 

In 1986, The Australian Law Reform Commission (ALRC) produced a report from discussions on applying Aboriginal customary law in particular cases. Discussions that lead to this report started almost 10 years earlier.  It is a complicated area due to: 

• The vast diversity in Aboriginal peoples’ lifestyles, degree of tradition followed and other international cultural influences. 

• There is no clear, single ‘authentic version’ of customary law and it is a ‘series of dynamic and changing systems applying to different groups of Indigenous Australians’ 

• Some known customary punishments are considered offences under Australian law. 

Though there has never been legal recognition for Aboriginal customary law, the ALRC report highlighted the importance of recognition of customary law and appropriate consultation with community members.  

It is vital that this consultation is done appropriately and with the right community members, Elders etc. for it to be successful. Consultation may include repeated visits to communities and include consultation with women, which is not generally part of customary law. 

Aboriginal Management of Legal Issues 

There can be a culture clash to deal with in judiciary matters. This often means reconciling the law with the lore. This is especially important for people who live in more traditional communities. To assist Aboriginal peoples with judicial matters, Aboriginal legal services have been set up and have been running for over 40 years. 

The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) is the peak national body, which oversees all the State/Territory based services; Aboriginal and Torres Strait Islander Legal Services (ATSILS) 

NATSILS provide legal advice, assistance, representation, advocacy and community legal education to Aboriginal peoples in the justice system. The ATSILS in each State/ Territory offer culturally appropriate legal assistance and services. NATSILS represents the following ATSILS: 

• Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd (ATSILS Qld) 

• Aboriginal Legal Rights Movement Inc. (ALRM) 

• Aboriginal Legal Service (ALS NSW/ACT) 

• Aboriginal Legal Service of Western Australia (Inc.) (ALSWA) 

• Central Australian Aboriginal Legal Aid Service (CAALAS) 

• North Australian Aboriginal Justice Agency (NAAJA) 

• Victorian Aboriginal Legal Service Co-operative Limited (VALS).  

These ATSILS assist communities to navigate legal issues impacting their lives. This happens through advocacy and community consultation. Where possible ATSILS employ Aboriginal people, to work with and support fellow Aboriginal and Torres Strait Islander people in the judicial system. 

Aboriginal Community Organisations  

In Australia, regional autonomy has been discussed (at the national level) for four regions: 

• Torres Strait 

• The Tiwi Islands 

• The Miwatj region in Arnhem Land 

• The Murdi Paaki ATSIC region in New South Wales 

In these examples, Indigenous people see autonomy as something that would mostly apply to Indigenous-specific services. In the Torres Strait consideration is being given to a form of regional autonomy that might apply to all the people in the region.  

The example of Murdi Paaki in New South Wales Indigenous people may well view autonomy in terms of passing more economic power to the regions. 

In general, the examples suggest that Indigenous views of economic autonomy include increased control over Indigenous-specific funding. The only exception to this is in Torres Strait where one goal is greater Indigenous control of local fisheries.  

There is a significant difference between Indigenous and government views of the economic aspects of autonomy. Governments consider political autonomy might reduce welfare costs through greater regional efficiencies or increased Indigenous participation in the economy. 

Regional autonomy is discussed as autonomy for a place or for peoples; one applying to all people in a region, the other only to the indigenous peoples in the region. This already applies to some extent with regional Land Councils. 

Some examples of models for self-government and regional autonomy that have operated or proposed to operate in Australia include: 

• Aboriginal Land Councils 

• The Uluru Statement from the Heart 

• The Masig Statement seeks to achieve regional autonomy for the Torres Strait and the Northern Peninsula by 2037  

• Aboriginal Regional Authority SA Policy (now defunct and to be replaced with SA First Nations Voice to Parliament) 

• National Voice to Parliament 

In March 2016, the South Australian Minister for Aboriginal Affairs and Reconciliation, Kyam Maher, presented that State’s first Aboriginal Regional Authority Policy, recognizing the importance of supporting Aboriginal leadership and governance in the State. The SA Government is no longer pursuing the Aboriginal Regional Authority Policy but has committed to a state-based implementation of the Uluru Statement from the Heart, which calls for Voice, Treaty and Truth. 

Implementation of the Uluru Statement will commence with the SA First Nations Voice to Parliament. The SA Parliament passed the First Nations Voice Bill 2023 earlier this year which will create the SA Voice as a connected, direct and independent line of communication for First Nations people to SA’s Parliament and Government. The SA Voice will be made up of six Local First Nations Voices and a State First Nations Voice. Aboriginal people living in SA will be able to vote for their Local First Nations Voice representative at the inaugural elections on 16 March 2024. 

Work to implement the Treaty and Truth aspects of the Uluru Statement will commence once the SA Voice is established.   

The Roadmap contained summaries of the Council's four, inter-related national strategies for achieving reconciliation:  

• overcoming Indigenous disadvantage 

• achieving economic independence 

• recognising Aboriginal and Torres Strait Islander rights 

• sustaining the reconciliation process.  

Each of these documents contains recognition of the importance of Indigenous self-determination for the reconciliation process. The Australian Declaration towards Reconciliation, for example, includes the phrase: 

‘we pledge ourselves to stop injustice, overcome disadvantage, and respect that Aboriginal and Torres Strait Islander peoples have the right to self-determination within the life of the nation. 

Government and private sector agencies are now instating Reconciliation Action Plans (RAP), which have assisted in employment targets for Aboriginal peoples. 

Reconciliation is a good starting point. This must be part of the process which sits alongside other policies that uphold Indigenous rights. An approach from many angles, working towards improving the well-being of Aboriginal peoples is more likely to bring progress than any one strategy on its own. 

The Uluru Statement is a proposal of constitutional reform that would establish First Nations representative body to advise parliament on policy affecting Indigenous peoples. 

The Statement proposes three key elements for reform: 

• Constitutional change – specific reference to Australia’s First Nations 

• Legislative change – supervised processes for agreements with Australian governments 

• Makarrata commission – to oversee the legislative change processes and ensure that the real stories about Australia’s colonial history replace the convenient fabrications in official histories. 

It was hailed as a breakthrough, a line in the sand. But Australia has drawn plenty of those over the years, and the wind blows them away. The Yirrkala bark petitions in 1963, the Larrakia petition in 1972 and the Barunga statement in 1988 all called for self-determination and a recognition of First Nations sovereignty alongside other demands for land rights.  

Mick Dodson was at Barunga to see Bob Hawke accept and later reject the call for a treaty and is all too familiar with promises of reform being brushed away. It leaves First Nations people with only one possible approach, he said: 

‘When the line in the sand is erased, you step up and draw the line again’. 

• Support for true self-determination 

• recognition and respect for Indigenous rights and culture as set out by Indigenous peoples themselves 

• Permanent Aboriginal representation body in government 

• formal acknowledgement that Indigenous peoples in Australia have never  relinquished any part of their sovereign status 

• help to officially re-write the false history fed to generations of non-Indigenous Australians and the international community 

Challenges may include: 

• Coming to agreement on what is sought – not all Aboriginal and Torres Strait Islander people agree with the idea of a treaty  

• Difficult to find agreement on the type of treaty and what it should include 

• Backlash from the ‘right wing’  

• Fear of losing things that have been so hard fought for already and the loss of benefits of being citizens of the commonwealth 

• Could lead to unwanted division – separate rights 

Native title is the recognition in Australian law that some Indigenous people continue to hold rights to their land and waters, which come from their traditional laws and customs. The following conditions must be met:  

• the rights and interests are possessed under the traditional laws currently acknowledged and the traditional customs currently observed by the relevant Indigenous people  

• those Indigenous people have a ‘connection’ with the area in question by those traditional laws and customs  

• the rights and interests are recognised by the common law of Australia.   

Native title has its source in laws and customs which have been acknowledged and observed in a substantially uninterrupted way from the time of settlement until now.  

The problem here is that colonial and successive government policies meant that Aboriginal peoples were systematically removed from their country. Other issues include; Native title exists alongside and subject to the rights of other people in the same area, it can only be claimed on certain areas of land or water, for example on vacant or unallocated Crown land but not on residential freehold land or land where public works exist, like roads, schools or hospitals. 

Native Title can be extinguished (refused recognition) because of things the government has done, or allowed others to do, over a particular area that are inconsistent with native title. Native Title is not granted by governments but by the Federal Court under the Native Title Act.  

Self-determination is the political right of the majority to exercise power within the boundaries of a generally accepted political area, or territory. 

The concept is mostly used in connection with the right of colonies to independence. It does not relate to attempts at independence by groups who do not possess their own sovereign states, such as the French Canadian. 

The system of Government established under the Commonwealth Constitution involves the exercise of the right to self-determination by the whole Australian people. This includes: 

• the adoption and amendment of that Constitution from time to time; 

• the continued existence and functions of the Australian States under the Constitution, and provision for self-government of Territories,  

• provision for free and fair elections; the rule of law; and specific measures to protect human rights. 

Unfortunately, the system of Government does not actually support self-determination for Aboriginal peoples. This is a greater part of the argument for constitutional recognition. The right to self-determination, together with the rights recognised in Article 25 of the International Covenant on Civil and Political Rights (ICCPR), may also be relevant to issues of open and accountable government. Consultation and appropriate participation in decision making for people affected by Government decisions must also be ensured. 

For Indigenous people, self-determination is viewed as essential for the maintenance and practice of Aboriginal law, language and culture. 

Self-determination is the right of a group to freely determine their political status and freely pursue their economic, social and cultural development. Self-government is codified under Article 4, United National Declaration of the Rights of Indigenous People, which states: 

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. 

The right to self-determination is contained in Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and in the International Covenant on Economic, Social and Cultural Rights. Article 1 of both Covenants states: 

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. 

The right to self-determination is a right of 'peoples' rather than of individuals. 

Source: https://www.humanrights.gov.au/right-self-determination  

Here is an overview of the Indigenous rights movement from the beginning of the 20th century. 

• 1901: Commonwealth of Australia formed. Indigenous Australians are excluded from the census and the law-making powers of the Commonwealth Parliament.  

• White Australia Policy (in response to xenophobic attitudes to non-European immigrants, primarily the Chinese) Indigenous people are also excluded from the vote, pensions, employment in post offices, enlistment in Armed Forces, maternity allowance. 

• 1938: Day of Mourning held by the Aborigines League (est. 1932) and the Aborigines Progressive Association (1937). It is the first major protest by Indigenous people. The manifesto “Aborigines Claim Citizen Rights” and the newspaper “Abo Call” are published. 

• 1949: Australian Citizenship Act gives Indigenous Australians the vote in Commonwealth elections if they are enrolled for State elections or have served in the Armed Forces.  

• 1957: National Aborigines Day Observance Committee (NADOC) formed with support from Federal and State Governments, churches and major Indigenous organisations. Its aim is to promote Aboriginal Sunday as a day to draw community attention to Indigenous people in Australia.  

• 1958: The Federal Council for the Advancement of Aborigines (later the Federal Council for the Advancement of Aborigines and Torres Strait Islanders) begins a ten-year campaign to end Constitutional discrimination against Indigenous people.  

• 1962: All Indigenous people are given the vote in Commonwealth elections. 

• 1967: Referendum held – 90.7% of Australians vote YES to count Indigenous Australians in the census and to give the Commonwealth Government the power to make laws for them. 

• 1970-1971: Aboriginal Legal Service and Aboriginal Medical Service set up in Redfern (grassroots activists include Mum Shirl, Fr. Ted Kennedy), along with Aboriginal Housing Company.  

• Neville Bonner becomes the first Indigenous member of Parliament when he filled a casual Senate vacancy.  

• 1972: Tent Embassy established outside Parliament House. It adopts the Indigenous flag. 

• Whitlam Government elected; White Australia policy abolished. Department of Aboriginal Affairs established. Self-determination adopted as policy for Indigenous people.  

• Neville Bonner is elected on the Liberal Party ticket in Queensland. 

• 1975: Whitlam hands back title to Gurindji people. Racial Discrimination Act 1975 (Cth) passed. 

• Aboriginal Day extended to National Aborigines Week.  

• 1976: Aboriginal Land Rights Act (NT)  

• 1978: Pat O'Shane becomes the first Indigenous law graduate and barrister. 

• 1979: Indigenous people at Noonkanbah protest against an American oil company's test drilling for oil. The WA Supreme Court grants an injunction, but tests eventually go ahead. 

• 1983: Aboriginal Land Rights Act 1983 (NSW) recognizes dispossession and displacement. 

• 1985: Uluru handed back to traditional owners. 

• 1987: Hawke sets up Royal Commission into Aboriginal Deaths in Custody. 

• 1988: Bicentenary protest sees tens of thousands march on Australia Day. 

• NADOC changes its name to include Torres Strait Islanders; it is now NAIDOC 

• 1990: ATSIC established.  

• 1991: Royal Commission into Aboriginal Deaths in Custody presents report. 339 recommendations, with the final recommendation being that a formal process of reconciliation between Indigenous and non-Indigenous Australia be undertaken. 

• Council for Aboriginal Reconciliation established by Act of Parliament – to have a 10 year-lifespan.  

• 1992: Mabo decision by the High Court overturns terra nullius and rules that native title exists over unalienated Crown land, national parks and reserves.  

• First “Survival Day” concert held at La Perouse (in 1998 the event moves to Waverley Oval near Bondi Beach). 

• 10 Dec: Paul Keating's Redfern Park speech for the launch of the United Nations International Year for the World's Indigenous People 

• 1993: Native Title Act. 

• 1995: HREOC National Inquiry into the Separation of Aboriginal Children from their Families announced.  

• Mid-1990s: NAIDOC wound up as ATSIC assumes responsibility for NAIDOC Week. 

• 1996: Howard Government elected. 

• The High Court rules in the Wik decision that native title and pastoral leases can co-exist.  

• Pauline Hanson and her One Nation Party campaign against what they say is “special treatment” for Aboriginal people. 

• Commonwealth Parliament makes statement of commitment to Reconciliation.  

• 1997: Bringing Them Home, the report of the inquiry into the Stolen Generations, is released. It recommends a national sorry day to commemorate the history and effects of removing children from their families. 

• 1997: Bringing Them Home, the report of the inquiry into the Stolen Generations, is released. It recommends a national sorry day to commemorate the history and effects of removing children from their families. 

• 1997: Bringing Them Home, the report of the inquiry into the Stolen Generations, is released. It recommends a national sorry day to commemorate the history and effects of removing children from their families. 

• PM Howard makes a personal apology to the Stolen Generations but refuses to make an official apology on behalf of Australia. 

• At the National Reconciliation Conference on 27th May, hundreds of people turn their backs on Howard during his speech, in protest at his refusal to apologise to the Stolen Generations. 

• “Sea of Hands” outside Parliament House in Canberra in support of reconciliation and the Wik decision.  

• 1998: Native Title Amendment Act 1998 is passed; seen by many to reduce native title rights for Indigenous people.  

• First National Sorry Day – over 1 million signatures collected in Sorry Books. 

• John Howard & Liberals re-elected; commits to reconciliation by 2001 in his election victory speech.  

• 2000: Corroboree 2000. Handover of Document for Reconciliation at Sydney Opera House, more than 300 000 join in the Bridge Walk. 

• 2004: Federal Government introduces legislation to abolish ATSIC. 

• TJ Hickey is killed while being followed by police – the Redfern Riot erupts. 

• Mulrunji Doomadgee dies in police custody, sparking a riot on Palm Island. 

• 2005: ATSIC abolished; National Indigenous Council (NIC) to replace and advise. 

• 2006: Aden Ridgeway chairperson of National NAIDOC committee. 

• 2007 - 21st June: Howard Government announces its intervention into Northern Territory Indigenous communities. 

• 2008 - 13th February: Prime Minister Kevin Rudd says 'Sorry' to the Stolen Generations.  

• 2010 - 8th November: Prime Minister Julia Gillard announces plans to recognise Indigenous Australians in the Constitution.  

• 2015 - Sit-in at Parliament House in Canberra to confront politicians about the state of Aboriginal affairs around the country. They demand that the Commonwealth of Australia begins negotiations towards decolonisation with the goal of healing from the “devastation wreaked upon Aboriginal Nations and Peoples” by violations of human rights. 

• 2016 - Aboriginal leaders come together to announce the Redfern Statement, an urgent call for a more just approach to Aboriginal Affairs and government action. The statement was presented to Parliament in February 2017. Read the statement in this link. 

• 2017 - Clinton Pryor arrives at Parliament House in Canberra after walking 5,800 kilometres from Perth (WA). Called ‘Spirit Walker’, he had started his year-long walk to highlight the situation of Aboriginal people and meet with the Prime Minister to present him with a list of grievances about the state of Aboriginal affairs. 

• 2017 – Uluru Statement from the Heart presented to the Australian people (rather than to the Government) 

• 2020 - Triggered by the death of George Floyd, a black man who was killed by a white police officer in Minneapolis in the United States, tens of thousands of people join Black Lives Matter (BLM) protests across Australia to protest the deaths of Aboriginal people in police custody. 

• 2021-2022 – Uluru Statement from the Heart wins Sydney Peace Prize. It is the second time the Statement, which was issued in 2017, has won the prize.  https://sydneypeacefoundation.org.au/uluru-statement-from-the-heart-wins-sydney-peace-prize/ 

• 2023 – Referendum for changes to the Australian Constitution. To include First nations peoples in the constitution and to appoint an independent and permanent advisory body within parliament through The Voice. 

• 2024 - 2025 - The Hon Linda Burney MP pushed for an inquiry into economic self-determination and opportunities for First Nations Australians. The result being a Government investment of $2.4 billion towards actions that make a tangible difference to First Nations peoples’ lives. To support better outcomes in health, housing, jobs, education and justice.

Source: Aboriginal timeline: Protest - Creative Spirits, retrieved from https://www.creativespirits.info/aboriginalculture/history/australian-aboriginal-history-timeline/protest?page=2 

Although the ACT and Victoria both have bills of rights, any contradicting Commonwealth law will prevail and override these State/ Territory laws rendering them invalid. 

Only five rights are expressly guaranteed by the Australian Constitution: 

• The right to vote (Section 41), 

• Protection against acquisition of property on unjust terms (Section 51 (xxxi)), 

• The right to a trial by jury for criminal cases in the higher courts (Section 80), 

• Freedom of religion (Section 116), and 

• Prohibition of discrimination on the basis of State of residency (Section 117). 

Ritual ceremonies involving special sacred sites, song cycles accompanied by dance, and body painting, invoke these mythic and living beings. This continues to provide the means to access the spiritual powers of The Dreaming. Indigenous Australian culture is a living culture and therefore is evolving. These stories are often re-told with a contemporary twist, which embraces the Dreaming but now includes the future.  

Recent years have seen major Indigenous festivals emerge. These festivals and celebrations are becoming accepted by mainstream Australia as important staples in the calendar for celebrating the cultures of Australia’s first peoples. Some of these festivals include: 

• Stompin’ Ground 

• Yeperenye Dreaming 

• Barunga Festival 

• Laura Festival 

• NARLA Knock Out 

• Survival, Coming of the Light 

• CROC Eisteddfod 

• NAIDOC and Reconciliation Week.