The Law and the Desert: Alternative Methods of Delivering Justice

Date01 March 2003
DOIhttp://doi.org/10.1111/1467-6478.00249
Published date01 March 2003
AuthorLouise Anderson
JOURNAL OF LAW AND SOCIETY
VOLUME 30, NUMBER 1, MARCH 2003
ISSN: 0263-323X, pp. 120–36
The Law and the Desert: Alternative Methods of Delivering
Justice
Louise Anderson*
This article considers the way in which the Federal Court of Australia
has adapted to the native title jurisdiction. Here we see how common
law approaches to law and procedure challenge, and are challenged
by, the culture of indigenous peoples and customary law. It conveys the
risk of cultural violence in a balancing of legal and cultural norms and
shows how access to justice debates reach beyond debates about
funding and advice into more fundamental issues about legal process
and the nature of substantive law. The Court’s approach to facilitating
access to justice goes deeper than essential procedural changes. Its
approach suggests a cultural change within the Court.
INTRODUCTION
The focus of this paper is on the way in which the Federal Court of Australia
(the Court) responds to the particular challenges of the native title
jurisdiction. I will first say something about the Court and its jurisdiction
and general way of operating; then I will explain how the Court deals with
native title cases. Finally, I will describe how technology has made an
impact on the ways in which the Court hears evidence and goes about the
management of the native title jurisdiction.
In describing the practice and procedure of the Court, I raise for
consideration a number of issues that arise out of the colonial law imposed
on the indigenous peoples of Australia from 1788 onwards. Indigenous
peoples of Australia have had the opportunity to pursue recognition of their
native title for less than ten years. It was not until 1992, when the High Court
of Australia (Australia’s ultimate appeal court) delivered the historic Mabo
judgment, that the law of Australia recognized that indigenous peoples held
rights and interests in land and waters and that native title could be
120
ßBlackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden, MA 02148, USA
*Native Title Registrar, Federal Court of Australia, 305 William Street,
Melbourne, VIC 3000, Australia
recognized at common law. For many indigenous and non-indigenous
Australians this recognition was a long time coming.
These issues were articulated by the Reverend Djiniyini Gondarra in his
presentation to the Ngaarra Legal Forum held at the Garma Festival at
Gulkula in Arnhem Land Northern Territory, Australia on 23 August 2001.
It’s really important for other people to know that there was a law here before
the invasion. All the Aboriginal nations, different nations, in all the states do
have law which was here before the invasion. It’s really important that this be
understood very clearly, that we do have law, before the Westminster system
of law came into this land.
[We] follow a practice of common law . . . This is the one thing that is very
important for us, to be able to see customary law – what it is. What is
customary law? Well I was initiated, educated and convinced that customary
law is a source of law, there’s no doubt! It’s the source of law of this land.
People ask the question ‘is customary law based on the rule of man or the rule
of law?’ And I say yes, it is a rule of law.
THE MABO CASE
Mabo and Others v. The State of Queensland [No 2]
1
was a landmark case
for indigenous and non-indigenous Australians in a number of respects. In
Mabo [No 2] the High Court acknowledged some ten years after the
litigation was commenced that, the indigenous peoples of Australia, at the
time of the imposition of colonial rule, held rights and interests in the land
and water.
The decision of the High Court in Mabo [No 2] took the form of a
declaration: ‘the Meriam people are entitled as against the whole world to
possession, occupation, use and enjoyment of the lands of the Murray
Islands.’
2
In reconsidering the foundation on which Australian history had been
constructed, the majority judges in Mabo [No 2] said:
The acts and events by which that dispossession in legal theory was carried
into practical effect constitute the darkest aspect of the history of this nation.
The nation as a whole must remain diminished unless and until there is an
acknowledgment of, and retreat from, those past injustices.
3
Their Honours exposed the lie of the notion of terra nullius (a concept,
meaning a country without a sovereign or a land that is not owned, that was
applied at the time of European settlement and resulted in absolute
ownership in land vested in the Crown) and held that a common law doctrine
founded on unjust discrimination in the enjoyment of civil and political
121
1Mabo and Others v. The State of Queensland [No 2] (1992) 175 C.L.R.
2 id., at p. 217.
3 id., at p. 109.
ßBlackwell Publishing Ltd 2003

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