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Australia needs to accept Indigenous law regimes as capable systems, barrister argues
There is a need for a conversation around how native title can coexist with the national land management system scheme and the respect deserved for Indigenous peoples.
Naomi Neilson
Source: murraychamberswa.com.au/barristers/raelene-webb-qc/
Raelene Webb QC, a barrister of Murray Chambers in Western Australia, argues there is a need to revisit the notion of Indigenous authority in the areas of Indigenous people holding land and governing their own societies according to their law.
“At its heart, this approach embraces legal pluralism and the acceptance of Indigenous law regimes as have been, and continue to be, flexible systems of governance capable of adapting to the changing needs and realities of the societies they govern,” she said.
Ms Webb said from an Indigenous view, under traditional laws and customs, the rights to exclude others and control access remain. Australian law does not recognise those rights “because the Crown has exercised its power to grant rights to others” which has extinguished any exclusivity of the native title.
“There have been different views expressed by the High Court judges as to whether native title would enjoy the protection of a provision. If it does, then it may be arguable that certain restrictions on compensation in the Native Title Act are unconstitutional,” Ms Webb said.
Aside from these legal issues, Ms Webb said litigating a compensation claim has been significantly more complex than litigating a native title determination approach.
She added the spectre of “complex, lengthy and expensive” native title compensation claims provided a reason and an opportunity for government to holistically re-examine relationships with Indigenous people and to examine how the dispossession of land harm can be best addressed to the “benefit of all”.
“Understanding these basic facts, that Indigenous societies hold land and govern their societies according to their law, strengthens the need to revisit the notion of Indigenous authority in these areas and Indigenous sovereignty that coexists with that of the Crown, but is not averse to it,” she said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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