What is Indigenous Law?

There is a distinction between Indigenous law and the law which governs Indigenous People in Australia today. Indigenous law is law that existed before the coming of the common law system that we continue to follow today.

For a long time, the idea of Indigenous law existing in Australia, particularly in a place like Tasmania where Aboriginal society had been almost destroyed, was met with resistance by the legislature and courts of Australia. But Indigenous law is a fact. It continues to exist in Indigenous communities, including the Tasmanian Aboriginal community, to the extent that its members continue to observe customs and practices.

Australian law recognises certain aspects of Indigenous law and custom within its own system. This includes such things as traditional rights to fishing, or land rights, and community involvement in rehabilitating or punishing criminal offenders. Some of this law stems from developments in international law, and is generally reflective of greater recognition of the independent cultural identities of indigenous people across the world. This chapter sets out the important parts of Indigenous law both as it affects Indigenous Australians and the general Australian community.

What is Indigenous law?

Indigenous law is distinct from Australian law in that it covers all aspects of Indigenous life – it is culture, land and law. The oral traditions of First Nations peoples inform Indigenous law, the landscape is part of the oral tradition, and so the land is part of the law. The stories and the landmarks that indicate the stories create the law. In some ways you can draw parallels between Indigenous law and Sharia law, derived from the Koran, in that it covers all aspects of life – family, community, crime. In the common law tradition, of which Australia is a part, many things we would consider to be social decisions, and not legal decisions, are considered to be part of Indigenous law.

Because Indigenous law is so different from common law, it can be difficult for outsiders to understand. The Australian legal system does not guide us on how to behave in all aspects of our lives, but Indigenous law does. Australian law doesn’t tell us who can and can’t eat a certain animal, or how infidelity in marriage should be punished. These are considered matters of personal choice. In Indigenous law this is not the case.

However, time and the brutal ravages of British invasion and occupation of Indigenous tribal lands radically altered nearly all First Nations communities. The common law system, brought over to Australia by the colonising invaders supplanted the Indigenous laws that had previously governed the First Australians. The common law system, which has developed into the Australian legal system recognises aspects of Indigenous law, but Indigenous law is not generally considered to be independent of this legal system.