Accommodating Legal Pluralism in Pacific Courts: Problems of Proof of Customary Law
| Author | Jennifer Corrin |
| Published date | 01 January 2011 |
| Date | 01 January 2011 |
| DOI | http://doi.org/10.1350/ijep.2011.15.1.366 |
| Subject Matter | Article |
ACCOMMODATING LEGAL PLURALISM IN PACIFIC COURTS Accommodating legal
pluralism in Pacific
courts: problems of
proof of customary law
By Jennifer Corrin*
Director, Centre for Public, International and Comparative Law;
Associate Professor, TC Beirne School of Law, The University of
Queensland
Abstract The interface between state legal systems and customary law is the site
of a number of complex problems. A particular difficulty lies in accommodating
customary law in formal common law court processes, which are typically
driven by the adversarial system. An important but much neglected issue within
this area is how best to approach the proof of customary law in courts. A
threshold question that arises is whether it should be treated as law or fact. Few
countries give any legislative guidance on this issue, nor has it been the subject
of extensive consideration by the courts themselves. This article examines the
issue of proof of customary law and a number of associated questions, focusing
on the common law courts in Australia. Comparison is drawn with the position
in neighbouring South Pacific Island States, which are also grappling with this
issue. The article commences with a discussion of proof of customary law within
the broader context of legal pluralism. It then moves on to a survey of the
legislation that impacts on proof of customary law in civil and criminal
proceedings in Australian courts. Some illustrative case law is then explored.
The article assesses the adequacy of the current regime and considers some of
the options for reform.
Keywords Legal pluralism; Customary law; Australian courts; South Pacific,
proof.
doi:10.1350/ijep.2011.15.1.366
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2011) 15 E&P 1–25 1
* Email: j.corrin@law.uq.edu.au.
he interface between state legal systems and customary law1is the site of
a number of complex problems. A particular difficulty lies in accommo-
dating customary law in formal court processes which are typically
driven by the adversarial system. An important but much neglected question
within this area is how best to approach the proof of customary law in common
law courts. Few countries give any legislative guidance on this, nor has it been the
subject of extensive consideration by the courts themselves. This is despite the fact
that customary law is relevant in a number of contexts. The most obvious are
perhaps property law, family law and sentencing, but it may also be relevant in
other contexts such as criminal law defences, succession, and cultural heritage
protection. The lack of certainty in process makes it more difficult for litigants to
establish a case under customary law or to use it to support or defend a claim or
charge under state law. It may also impact on the capacity of legal practitioners to
handle cases effectively, and impede the judiciary from dealing with these issues
appropriately and consistently. More broadly, uncertainty may result in a lack of
confidence in the formal justice system where customary law issues are involved.
A threshold question that arises in considering proof of customary law is whether
it should be treated as law or fact. The answer to this question has significant
consequences for proof. If customary law is treated as a matter of law, parties may
rely on it without adducing evidence in support. On the other hand, if customary
law is treated as fact, evidence must be adduced to prove its existence and appli-
cation. This brings into play complex rules of evidence and procedure. For
example, in civil cases, if customary law is treated as fact, it must be pleaded in the
same way as other facts that are being alleged. On the other hand, if customary
law is treated as law,2the starting point is, strictly speaking, that the rules of
pleading do not require, or arguably even allow, it to be pleaded.3The question of
whether customary law is required to be pleaded brings into focus the competing
factors that must be balanced in the quest to accommodate customary law within
the formal system. On the one hand, there is the need for certainty and clarity, so
that, for example, a party may know the case that he or she has to answer at trial.
2 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
ACCOMMODATING LEGAL PLURALISM IN PACIFIC COURTS
T
1 The imprecise term ‘customary law’ is used in this article to refer to the unwritten norms and
values of the indigenous cultures of Australia and the Pacific, as well as to the processes by which
people in those cultures maintain order and resolve disputes.
2 There are limited areas where indigenous customary law is treated as law. For example, it is
arguable that under the Native Title Act 1993 (Cth), s. 223(1)(a) the ‘traditionallaws acknowledged,
and the traditional customs observed’ by indigenous applicants are treated as law. The legislation,
however, requires proof of these laws and customs to establish native title as the recognition of
native title is premised on rights and interests being possessed under the laws and customs. See
Chap. 4 for areas where it is arguable that indigenous customary law is recognised, to some extent,
as law.
3 See Coppo v Banalasta Oil Plantation Ltd; Borg v Pawski [2005] QCA 96 at [28].
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