8.1 Aboriginal and Torres Strait Islander and non-Indigenous approaches
Today, Aboriginal and Torres Strait Islander people and their organisations operate under two very different systems of laws.
Incorporated organisations are established under western legislation that spells out legally what a conflict is (for example, a conflict of interest) or a grievance (which could be about an election process or decision), and what procedures should be followed (including appeals, complaints and audit procedures).
Aboriginal and Torres Strait Islander people are citizens living under the Australian parliamentary and common law inherited from the British legal system. Their lands and communities are located and regulated within the administrative boundaries of mainstream governments.
But they also have their own cultural identities and continue to adapt mechanisms for mediating disputes, resolving grievances and restoring social harmony that are based on their ancient systems of law, networked relationships and jurisdiction.
8.1.1 Aboriginal and Torres Strait Islander mechanisms and values
There are common underlying values and processes that can be seen at work across the country when Aboriginal and Torres Strait Islander people deal with disputes, wrongdoing and grievances.
Snapshot: Aboriginal and Torres Strait Islander mechanisms for settling disputes
|In general, Aboriginal and Torres Strait Islander culture-based mechanisms for managing and settling disputes and wrongdoing are:|
|action-oriented and physical. Punishment and sanctions involve law-based and regulated restitution, revenge or injury.|
|socially based. Conflicts seep into wider social networks, people ‘in the wrong’ may be sent away by the group, or may initiate their own self-imposed absence from the group or community.|
|material and monetary. Restitution and compensation are valued, including the exchange of cash, food, services or commodity goods.|
|religious and spiritual. Individuals with legitimate authority and power act as enforcers of punishment, people may participate in cleansing rituals, or the wrongdoer may be excluded from valued religious ceremony and knowledge.|
|symbolic and performance-based. Ritualised peacemaking apologies and highly orchestrated reconciliation fights may be performed.|
The closely networked, kin-related nature of Aboriginal and Torres Strait Islander society means that conflict and wrongdoing can quickly spread across a wide circle of people.
This means that in order for resolution of disputes and grievances to be considered legitimate and fair, that wider circle of people needs to be included.
8.1.2 Differences in Aboriginal and Torres Strait Islander and non-Indigenous systems
At the heart of Aboriginal and Torres Strait Islander systems of law and related mechanisms is the desire to:
- recognise collective rights and interest
- restore social relationships
- restore a sense of cohesive collective identity
- reaffirm systems of religious law and authority.
This is different from Australia’s western legal system, which has a focus on:
- individual rights
- separation of the interests and rights of the ‘victim’ and ‘offender’
- representation by external legal advocates
- ‘arm’s length’ judgement and punishment by courts.
Snapshot: Some differences between Indigenous and non-Indigenous processes for the resolution of disputes and wrongdoing
Aboriginal and Torres Strait Islander dispute resolution
Western dispute resolution
The close family, elders and wider community work out what the dispute or wrongdoing is about, who it has affected, and how it will be resolved or punished.
Strangers (external professionals) determine the nature of the dispute or wrongdoing, and how it will be resolved or punished.
Punishment and peacemaking processes are made by consensus among all participants, according to Aboriginal and Torres Strait Islander laws and legal precedent. The aim is both personal punishment and restoration of the wider social equilibrium and collective identity.
Punishment is determined according to formalised laws and legal precedent. Peacemaking and restoration of collective identity are not considerations, although individual rehabilitation is.
Participants take into account not only the impact on the ‘victim’, but also the wider, critical factors of social and religious impact.
The impact of the dispute or wrongdoing on the ‘victim’ may be taken into account by the court.
The people directly involved in the dispute (victims and offenders) are also involved in the customary law process, including determining innocence or guilt and advocating punishment or other restorative solutions.
External advocates are used.
Decision making is collective and by consensus, sometimes taking considerable time and negotiation.
Decision making is hierarchical and formalised through institutions such as courts, hearings, professional members of the judiciary and jury systems.
A wider group of people may be included in the punishment, peacemaking and compensation.
Only the ‘offender’ is punished.
8.1.3 The challenges of balancing two-way processes
“In Yolngu communities it’s very hard to use balanda [non-Indigenous] law system to bring about conflict resolution and restoration between families and clans. Balanda systems of law break and damage relationships between people, family and clan groups. This is because balanda system of law is very hard for us to understand and also does not come out of Yolngu dispute and conflict resolution practice and process.”
(Djiniyini Gondarra, Mawul Rom Project, Yolngu Nation)
The differences between the two ways of law and dispute resolution present major challenges for effective governance.
Western systems of dispute resolution are seen by Aboriginal and Torres Strait Islander people as imposing alien values and legal processes, and undermining or ignoring important relationships between family groups, clans and communities.
On the other hand, while many Aboriginal and Torres Strait Islander nations and communities continue to place a high value on their own laws and processes, they face practical difficulties in the contemporary conditions of many of their communities. For example:
- pressure from close-kin may mean that Indigenous leaders of organisations do not want to upset their families, and so hesitate to enforce decisions and policies
- elders and leaders may be incapacitated through poor health or are absent and are unable to effectively exercise any authority or calming influence—this can undermine consensus decision making and long-term planning, especially if demands for immediate access to resources, or disputed land-ownership rights are involved
- many Indigenous people are concerned about the breakdown of the traditional authority of elders, and the lack of respect among youth for their own dispute-resolution processes
- sometimes people feel unable to collectively deal with bad behaviour, crimes, or bullying and corrupt individuals in their own midst.
To meet these demanding conditions, Aboriginal and Torres Strait Islander people are crafting innovative ways of restoring their self-determination and delivering their own peacemaking and dispute-resolution processes, including:
- circle sentencing processes
- night patrols
- elders councils and advisory boards
- family-group conferencing
- women’s refuge services and youth diversion projects
- Aboriginal and Torres Strait Islander ethics committees
- specialist Indigenous agencies and services.
Many groups are also collaborating with non-Indigenous courts, magistrates and government agencies to design alternative approaches and local community courts that work two ways and take Indigenous values and restorative goals into account.
The challenge for Indigenous organisations and projects is to meet their statutory requirements for dealing with disputes or wrongdoing, while seeking out and designing rules and processes that have cultural legitimacy with Aboriginal and Torres Strait Islander people, and creating outcomes that win their support.
“We got lots of kids not following our culture, they not following mainstream culture, they following lazy culture. So bad things are going on. We gotta stop the bad things and concentrate on the good things. Over the last 10 years we support them in every way we can. We try and meet their needs, help them find jobs. We have work-based projects, we try and find contracts for them. We linking people up with educational institutions, we network, we organise agencies to go out to communities and run programs …. All of this happen while we go back to country, learning from the old people about culture, skin and the old stories. We grateful for leadership that does all these things and this is what Yiriman has been doing for 10 years.
(Anthony Watson, Yiriman Bosses Meeting 2010)”
(Quote from Yiriman application to Indigenous Governance Awards, 2012)