Australian law and the co-existence of many laws in one land

Wednesday, 6 June 2018
Angus Frith

In its native title decisions, the High Court has taken a restrictive view of the relationship between Australian and Indigenous laws. Australian law only recognises rights arising, as a matter of fact, from a limited class of Indigenous laws. Implicitly, there is only room for one law in Australia. This limits the capacity for engagement between laws.
This restrictive approach contrasts with an appreciation that Indigenous laws operate vibrantly within native title groups and their corporations, determining people’s behaviour in those corporations and with the broader Australian society. Australian law’s failure to acknowledge this fact limits the scope of the benefits to be gained from the recognition of native title.
Broader Western ideas offer some assistance: legal pluralism contemplates that more than one law can operate; postcolonial theory demands an adjustment of relationships between coloniser and colonised.
Applying such ideas might assist Australian law to engage better with Indigenous laws. However, Australian law might also learn better approaches to its interactions with Indigenous laws from the ways that Indigenous laws themselves approach these interactions.
After considering some Indigenous approaches to the interaction between laws, this paper considers whether such approaches may assist the operation of native title corporations.