HOW ENGLISH LAW AFFECTED INDIGENOUS

AUSTRALIANS10 Legal Studies

LAW BEFORE BRITISH SETTLEMENT

When people gather and live together, rules inevitably emerge These rules can eventually become laws Indigenous Australians lived in Australia for many years before English settlers arrived

In this time they developed a complex system of law We recognise this today as Aboriginal (Indigenous) customary law Customary law: the practices and systems among Indigenous Australians which have developed over time, regulating behaviour and connecting people with each other and the land through a system of relationships

Indigenous Australians organised themselves into extended family units (clan) These consisted of 60 or more people

Clans were often part of a larger grouping (tribe)

Each clan was named after the area of land where they normally lived

This land was held in sacred trust from generation to generation

Having the land came with detailed rights and responsibilities that were known and obeyed by clan members

They had strict rules governing relationships between clan members as well as other relationships

There were hundreds of tribal areas throughout the continent Possibly up to 600 different dialects or languages The geographical size and number of tribes meant traditions, social structures, laws and beliefs could vary greatly

Aboriginal Tribal Map

LAW AFTER BRITISH SETTLEMENT Capt. Arthur Phillip claimed Australia in the name of King George in 1788

From then on, British laws were to apply

Aboriginal people on the entire continent were suddenly seen as the King’s subjects and as such were bound by his laws

Some had never even heard of King George, let along a country called England!

No recognition of Aboriginal laws No treaty was signed (unlike the Waitangi Treaty in NZ) No negotiation with the Indigenous people in relation to them losing ownership and control of the land

It wasn’t until another 200 years that ‘English law’ would give due expression and legal validity to Aboriginal customary law

This began with the landmark native title High Court decision in Mabo No. 2 (1992)

IMPACT OF ENGLISH LAW English law was applied throughout Australia This applied to criminal and civil matters Eg. traditional Aboriginal marriages were not legal

As many as half a million people, living in several hundred tribal groupings, in occupation of even the most inhospitable corners of the continent, had, in a single instant, been dispossessed.

From that apocalyptic moment forward they were technically trespassers on Crown land even though many of them would not see a white man for another thirty, another fifty years. Even sons and daughters of those dispossessed might not meet their expropriators until middle age.

English legal witchcraft was so powerful that it wiped out all tenure, all rights to land which had been occupied for 40,000 years, for 1,600 generations and more. The white man’s technology had brought him to the southern continent. His jurisprudence delivered the ownership of a million and a half square miles of someone else’s land and it could be received with a clear conscience in the belief that the dispossessed would respond to the ‘amity and kindness’ of the first settlers.

It was a stunning takeover. -‘The Law of the Land’, Henry Reynolds, 1987

WHAT DO YOU THINK?1. What do you think the writer meant by ‘English legal witchcraft’

in their description of the ‘stunning takeover’?2. Were Captain Cook’s actions legally and morally justified in

claiming the continent for the British Crown?3. Should there have been a treaty made with the Aboriginal

people? If yes, on what legal basis and what matters should have been covered by the treaty?

4. What rights do you think the Aboriginal people should have had after the British made New South Wales their colony?

The British began to push Indigenous Australians off their land They refused to recognise clans’ and tribes’ ownership Indigenous Australians were cut off from their traditional food sources

When they took a sheep or cow for food, they were punished under British law (for theft)

The Indigenous Australians did not see it as theft, as the animals were on their traditional lands, there for the taking

They were forced to endure a justice system they didn’t understand

R V

JACK

CON

GO

MUR

RELL

(183

6) 1

LE

GGE

REP

72

WAL

DEN

V HE

NSLE

R (1

987)

163

CLR

56

1