Law, Culture and Decolonisation: The Perspectives of Aboriginal Elders on Family Violence in Australia

Family violence within Aboriginal communities continues to attract considerable scholarly, governmental and public attention in Australia. While rates of victimization are significantly higher than non-Aboriginal rates, Aboriginal women remain suspicious of the ‘carceral feminism’ remedy, arguing that family violence is a legacy of colonialism, systemic racism, and the intergenerational impacts of trauma, requiring its own distinctive suite of responses, ‘uncoupled’ from the dominant feminist narrative of gender inequality, coercive control and patriarchy. We conclude that achieving meaningful reductions in family violence hinges on a decolonizing process that shifts power from settler to Aboriginal structures. Aboriginal peoples are increasingly advocating for strengths-based and community-led solutions that are culturally safe, involve Aboriginal justice models, and recognises the salience of Aboriginal Law and Culture. This paper is based on qualitative research in six locations in northern Australia where traditional patterns of Aboriginal Law and Culture are robust Employing a decolonising methodology, we explore the views of Elders in these communities regarding the existing role of Law and Culture, their criticisms of settler law, and their ambitions for a greater degree of partnership between mainstream and Aboriginal law. The paper advances a number of ideas, based on these discussions, that might facilitate a paradigm shift in theory and practice regarding intervention in family violence.

Features of the activities of the ombudsmen for the protection of the rights of indigenous minorities: foreign experience

The article proposes an analysis of legislation and scientific research on the legal status of indigenous small peoples in foreign countries. Particular attention is paid to the types of public authorities and ombudsmen, the specifics of their legal status and the powers to protect the rights of indigenous peoples in different States. Specific mechanisms for the action of the law, in particular Aboriginal law based on the use of religious and moral traditions of small peoples, are proposed. Among the aspects of the legal protection of the child's interests are the discussion points of the independence of the legal status of the child and its implementation externally, including in the context of the implementation of parental rights. A special place is given to the problem of the law-making of public bodies created by indigenous peoples themselves.

Over-regulation of Indigenous law? The Burial and Cremation Bill 2019 (NT)

The Northern Territory’s Burial and Cremation Bill 2019 has been criticised as a gross form of disrespect to traditional Aboriginal law, with Indigenous people arguing that the Bill criminalises the operation of Aboriginal law on Aboriginal land, and may lead to an increase in already high incarceration rates. Should the law in this area seek to strike a ‘balance’ between Aboriginal law and the policy goals of non-Aboriginal law, including policing and record-keeping; or should Indigenous people be left free to carry out traditional law in an area of great cultural and historical sensitivity?

Evidence, Persuasion and Diversity

My topic is the theme of the E-OSSA 12 conference, namely Evidence, Persuasion and Diversity. I will present relevant material from a selection of Canadian legal cases, along with background information as needed and commentary. My primary focus will be on two landmark Supreme Court of Canada cases—an Aboriginal law case and a case that was both a constitutional law case and a criminal law case.

The Bindunbur ‘Bombshell’: The True Traditional Owners of James Price Point and the Politics of the Anti-Gas Protest

On 23 November 2017, the Federal Court handed down its judgment in the Bindunbur case, a long-running native title dispute over significant areas of the Middle Dampier Peninsula in the Kimberley, North-West Australia. The decision was called a ‘bombshell’ because of Justice North’s finding that the Goolarabooloo family, long described in the media and by the public as ‘traditional owners’ of James Price Point and seen as leaders of the fight against the failed Kimberley gas hub, are not traditional owners of that area after all. This article argues there are several related reasons why outsiders mistook who are the true traditional owners of James Price Point. Firstly, an entrenched association in the minds of most non-Aboriginal people between Aboriginality and wilderness; secondly, outsider ignorance of Aboriginal law; thirdly, several key differences between the customary Aboriginal normative system and Australian settler property law; and finally, that it was essential to have traditional owner support for the No Gas campaign against the project.

Recent Judicial Decisions of Interest to Energy Lawyers

This article summarizes a number of recent judicial decisions of interest to energy lawyers. The authors review and comment on the past year’s case law in several areas including contractual interpretation, employment and labour law, Aboriginal law, constitutional law, intellectual property, bankruptcy and insolvency, and selected developments relating to summary judgments. Specific topics addressed include the appropriate standard of review, workplace drug and alcohol testing policies, appellate intervention in commercial arbitration, the appropriateness of granting summary judgments, valuation of dissenting shareholders’ shares, a duty to consult, the applicability of municipal bylaws when they conflict with federal legislation, and the rights and obligations of oil and gas companies placed into receivership. For each case, some background information is given, followed by a brief explanation of the facts, a summary of the decision, and commentary on the outcome.

Traditions

This chapter examines legal encounters and legal relations between Indigenous peoples in both Australia and New Zealand and the British Empire. It looks at court decisions as a source of historical material in order to suggest two contact points between jurisdictions through which to think about indigenous laws and settler laws. It focuses on only two instances of contact: the colonial and the present. In many ways this choice reproduces ongoing gaps in tracing and thinking about legal encounters with Aboriginal law in Australia and, to a lesser extent, in New Zealand. Scholarship on legal encounter has tended to be centred on the colonial period to the detriment of the later nineteenth century and much of the twentieth century. The chapter looks at the ways in which colonial and modern law engaged/s with aboriginal law from the perspective of the colonizer, not the colonized.