Aboriginal customary law
blogged earlier today on a Northern Territory story
in The Australian
newspaper, dealing with a case where a Supreme Court judge effectively exonerated a 50 year old traditional Aboriginal man on charges of unlawful sexual intercourse with a 15 year old "promised" wife. Scott remarked that he found the judge's actions "alarming". I can see why. It is clear that the girl did not consent, either to the "marriage" or to sexual intercourse with this old man. Even more disturbingly, the "husband" had previously been convicted of manslaughter of a previous wife.
Nevertheless, as the girl's parents were "concerned she was playing up at nights with local boys in her hometown of Maningrida in western Arnhem Land, they decided it was time for the promise to be fulfilled, and for her to learn her duties and responsibilities as a wife."
The judge may have thought that the girl "knew what was expected of her". However, I suspect the reality is that, like many young Aboriginal people, she is caught between two cultures; stuck with the expectations of the residual traditional culture, but having many of the same beliefs, hopes, aspirations and expectations of a young girl anywhere else in Australia. Being forced to marry an ugly, violent old man when you're still a child does not fit with those aspirations and expectations. It also doesn't fit with what the dominant western culture regards as primary values of individual rights and freedom. Should a judge be free to ignore those values and prefer instead Aboriginal customary law and values, in the absence of Australian legislation giving him an express duty to do so? Should the judge be free to ignore the fact that the young female victim had fairly clearly expressed her non-acceptance of customary law in its application to her?
Certainly, a contributor to the comments facility on the Australian
website agrees strongly with Scott:
"Had this man been white he would be reviled as a pedophile and an exploiter of Aboriginal girls. Had the girl been white there would be counsellors all over her. Had both of them been white there would be much gnashing of teeth from social campaigners. What the nation can expect however is the exact opposite.
He is humiliated and embarrassed that he has had to explain his backward and repugnant traditions of buying children. We can no doubt expect an apology to flow from the government of the Northern Territory for the “insensitivity” shown towards him. She is in “no need of protection from white law” and “knows what is expected of her”. Clearly she (a child) is to be left alone to fend for herself. That such marriages may be common and morally correct under Aboriginal law is indeed proof that we do not need two parallel legal systems in this country. That a judicial officer would bow and scrape before Aboriginal custom at the expense of the rights and freedoms of an Australian citizen is both horrific and disappointing. "
Many of my immediate reactions coincide with Scott and the above comments. However, there are more issues involved, and they're not simple. We are reacting from the frame of reference of our own individualist western culture; Aboriginal traditional law and culture are very different. These two quotes from an excellent article by David Lea
titled "Individual Autonomy, Group Self Determination and Assimilation of Indigenous Cultures" explain the differences:
"'In traditional societies, we would expect values to be based more on recognition than on choice, with the result that the collective and individual identity and well-being would be less open to volition than, in say liberal individualistic societies. This, I claim marks the major difference between native communities and our own'.
Another commentator makes similar observations:
'Members of the (indigenous) community are expected to participate in communally orientated functions, and to respect the authority of the community and its traditions and values; withdrawal from participation is equated with withdrawal from the community, since membership can mean nothing other than participation.' "
How do we resolve clashes between western individualist law and culture and Aboriginal customary law? Alison Humphry
deals with some of the issues in an article in Murdoch University's E-Law
"The converse situation is that where the traditional punishment for an offence is seen by the national legal system and international human rights instruments as too harsh. An example of this is the incidence of tribal pay-back killings, or tribal spearings/ woundings as punishment for serious transgressions.
It seems obvious therefore, that tribal killings are in conflict with the national legal system (which does not condone capital punishment), and every international human rights instrument. It is less obvious whether a State must, under the convention, condone physical punishments such as spearing or other forms of wounding. As stated earlier, human rights instruments generally contain proscriptions of cruel and inhuman treatment or punishment. However, as is pointed out in the Law Reform Commission report, it may be a moot point as to what is more cruel to various peoples. Certainly the high rate of Aboriginal deaths in custody has made it open to question whether imprisonment per se is less cruel and inhuman. See for example the submission of HC Coombs to the Law Reform Inquiry on customary punishment: "punishments...such as prolonged imprisonment especially among alien strangers and away from their own country are markedly more "inhumane" and unconscionable" than a spear through the thigh - usually voluntarily accepted as part of a consensus settlement""
However, the situation we are discussing does not involve a traditional punishment seen as overly harsh, but rather an Aboriginal "civil" law concerning marriage and conjugal rights and duties, which clashes with western norms, and is criminalised by western law. There are some parallels with the case of Aboriginal activist Murrandoo Yanner
, who was convicted of an offence for spearing a crocodile. The High Court overturned the conviction, basically because he was acting in accordance with Aboriginal customary law and practice. However, even if one accepts the logic of that decision, the current situation raises additional dilemmas. There is a child involved, whose legal rights (not to mention her body) are being violated against her will and in a fundamental way.
David Lea suggests that there is a fundamental contradiction between Aboriginal self-determination (which necessarily requires economic self-sufficiency) and maintenance of traditional law and culture:
"My conclusion is that if the survival of indigenous communities as distinct cultural enclaves is guided by a policy which aims for autonomy and self-determination, it is difficult to avoid the economic imperative which links self-determination with a degree of financial self-sufficiency. The political autonomy of the community may depend on an effective command of financial resources.
This means that members of these communities must be capable of engaging in income earning pursuits and otherwise participating in the modern, growing global market economy, either on an individual basis or in concert with other community members through viable economic organisation. This means the formation of corporations and financial associations which actually work commercially and which are more than symbolic vehicles for the political ascendancy of particular individuals. However, the more successfully the community becomes integrated into the economic mainstream, the more irrelevant the traditional cultural context may become. ... Obviously, Aboriginal societies, unlike the Quebecois, have a non-Western religious culture, but the other points will apply equally. As traditional communities become integrated into the modern market economy, it is unavoidable that their values and choices will become determined by a dominant economic culture even if the presence is subtle."
Lea suggests an alternative to this inevitable erosion of customary law and traditional Aboriginal society, in that he advocates that Aboriginal communities which wish to retain their culture and society intact should be supported by the taxpayer to do so, as a matter of "fiduciary" and "moral" duty, and without any expectation that the community will achieve economic self-sufficiency. In effect, he advocates that Aboriginal communities have the option of becoming taxpayer-supported "museum cultures". I have serious problems with this suggestion, primarily on the basis that it can't possibly work. You would have to create an impenetrable "iron curtain" around the "museum" communities, to avoid the danger of young people being infected by the contagion of western consumerist values and individual rights culture. The recent experience of the Soviet Union and its satellites suggests that this is impossible.
Indeed, it's already too late, as our 15 year old girl's attempted resistance to forced marriage illustrates. In every Aboriginal community I have visited, however remote, young people manifest clear aspirations towards western culture and values in myriad ways. They have voted with their feet. It's too late to turn back the clock, even if we thought it was desirable. Land rights and self-determination should be seen mostly as circuit-breakers, designed to give Aboriginal communities the breathing space to find their own ways to adapt to 21st century cultural and economic realities. I argue that they have no choice but to adapt, and that we don't do them any favours by fostering or acquiescing in an illusion that preservation of a "museum culture" is possible. Justice Gallop did our 15 year old sexual abuse victim no favours by siding with her abuser on misguided customary law grounds, but in a wider sense he also hasn't helped Aboriginal society itself to begin confronting these vexed issues in a realistic way.