Why Indigenous Law Has No Place in Australian Law

That great termagant of the recent “Yes” referendum campaign, Professor Marcia Langton, and her academic offsider in the Indigenous Knowledge Institute at the University of Melbourne, Professor Aaron Corn, have contributed a volume on indigenous law to the “First Knowledges” series published by Thames & Hudson in an effort to remove the doubt about the existence and bona fides of Indigenous Law, as it is termed. Aspects of the book’s title prefigure difficulties with the project. The opaque use of the plural of knowledge signals a lack of confidence from the start. Other “knowledges” in the series include Songlines, Design and Astronomy. It has become fashionable in indigenous studies circles, and more generally in the media/academic complex, to use the plural as a way of suggesting there is something more to Aboriginal culture than one might expect, that it goes beyond the tired Western concept of “knowledge”, and offers a proliferation of insights into Australia at various levels of consciousness.  

The series editor, Margot Neale, who describes it as “big reads in small-format readers”, makes large claims for the book in her foreword: it is “a timely call for action with its well-argued recognition of Indigenous Law as being fundamental to Australian nationhood, offering us the gift of exchange and a social contract for a unified future … and makes plain the absolute necessity of the inclusion of Indigenous Law in the modern law of this country”.  

In our modern societies derived from the Western tradition we are accustomed to regard a working and efficient legal system as possessing certain general features. In his Concept of Law (1961) H.L.A. Hart described five such features: rules forbidding certain behaviour under penalty; rules requiring compensation to be paid for certain injuries; rules specifying what must be done to make particular transactions valid and enforceable; a court system to determine the rules, when they are broken, and to fix punishment or compensation; and a legislature to make new rules and abolish old ones.

John Finnis listed several desiderata that established not only a legal system but also the rule of law (Natural Law and Natural Rights, 1980): rules that are prospective and not retroactive; rules that are otherwise possible to comply with; the promulgation of rules in a clear and coherent manner; sufficient stability in the rules to allow people to be guided by them; and consistency and accountability of those who administer the law. 

This review appears in our March edition.
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In his investigation of the persistence of the question as to what constitutes “law”, Hart wrote:

Is it because, besides the clear standard cases constituted by the legal systems of modern states, which no one in his senses doubts are legal systems, there exist also doubtful cases, and about their “legal quality” not only ordinary educated men but even lawyers hesitate? Primitive law and international law are the foremost of such doubtful cases.

Problems with grasping indigenous law, and the “argument” advanced by the authors, are usefully pointed out by Neale. She emphasises, for example, one of the recurrent themes, repeated ad nauseam in the apparent belief that it makes indigenous law of great significance beyond its immediate native application, that is, the connection it has to almost everything, described as its “deep connectivity to every conceivable aspect of life across time, space, and place”, “traditional knowledges and law systems” (those plurals again) “permeate all aspects of people’s lives, whether people recognise it or not”, and “the Aboriginal definition of ‘law’ equally includes culture and the sacred. Law and culture are inseparable—one is the other”.  

Unfortunately, the emphasis on omnipotence renders the concept of law being discussed impossibly indefinite. Even Langton has to admit that the generality of the laws are “entangled in complex kinship and descent relationships, affiliations to land and water, and ceremonial observance”, and “are not easily understood”. The book proceeds by chapters intended to describe the law in relation to certain aspects of life—respect and responsibility, family, gender, wisdom and leadership—but provides very little content of the laws at any stage. Rather, the reader is given broad aspirational statements of purpose, such as: 

The legal systems established by the original ancestors work to provide standards and protections that help societies function and maintain their standards of living. They actively encourage humble, thoughtful and peaceful behaviours in line with an underlying ethos of respect and work to discourage and dissipate behaviours that are needlessly selfish, aggressive and destructive. 

What the standards are and how they are made to work to achieve these aspirations is, disappointingly, not explained. Indigenous law, as far as one can gather from the diffuse and vague descriptions throughout the book, is mainly practised at ceremonial occasions, through songs and directed orally by certain law people who are accredited with having the requisite knowledge of the law, and by applying a sifting and complicated set of rules which determine from birth which females can marry which (often older) males from related tribal groups in an Aboriginal version of pre-arranged marriage customs intended to avoid over-close consanguinity within clans.  

What makes crystal clear that what we are dealing with is really a set of cultural customs and sacred religious observances is the apparent origin of the laws. The “ancestors” of the book’s title are not the human forebears of the current indigenous population. As Langton and Corn explain, the laws originated with and were handed down by the extra-terrestrial beings from whom the current indigenous population are descended and who are variously described as “creator beings”, “something bigger than humans” and “supra-human”. They could change their form and can still do so because they remain eternal. They stipulated the laws, which, as one elder told Australian anthropologist Fred Myers, “was not our idea”. Readers are informed that the original ancestors were not motivated by any moral compulsion to enact laws: “Like the various species and other natural phenomena whose forms they take, there are no good or bad intentions behind their behaviours: they simply exist and act according to the natural logic of their own behavioural cycles.” This is, perhaps, not an attractive opening argument for including indigenous law in Australian law. 

It is not entirely clear whether the authors believe that indigenous law originated with the mysterons, but this type of creation myth is, of course, not unusual. The Christian story, after all, includes the fable that God handed the Ten Commandments down to Moses on Mount Sinai. Why is that any different, in a broad anthropological way, one might ask, from the monstrous shape-shifting legislators of the “laws” reported by Langton and Corn? One difference is that though God himself spoke the commandments to Moses, he also sensibly took care, like any good lawyer, to write them down on two tablets of stone. The commandments thus stood a chance of fulfilling most of the desiderata of John Finnis. By contrast, to this day the indigenous laws of Australia are handed down from generation to generation through an unspecified oral process. A lot in the book therefore has to be taken on good faith and at face value. There is no promulgation of the laws. Langton describes achieving her own education in the laws through “being involved in events”, for example: 

I once lay down from exhaustion on the ground during a funeral ceremony in northern Australia and was roundly admonished. On another occasion, I spoke to a person who, as it turned out, was my “poison cousin”, and I was told to turn around and look the other way. I came to understand that there are many of these subtle rules in a larger body of laws of a sacred and esoteric nature. 

Nowhere in the book is the principle of the separation of church and state mentioned; it is not a concept with which either the authors or the indigenous culture they seek to promote appear to be familiar. The freeing of the administration of the law from the dominance of priests developed over centuries in Europe as an important technique in achieving governance under the rule of law. In 1625 Francis Bacon in his essay Of Judicature warned that “else it will be like the authority claimed by the church of Rome; which, under pretext of exposition of Scripture, doth not stick to add and alter, and to pronounce that which they do not find, and by shew of antiquity to introduce novelty”.  

Compare that warning with the description by Langton and Corn of the secret law held and administered by Aboriginal women concerning traditional medicine, midwifery, the environment, something called “ancestral design”, song and dance, and making tools and sacred objects. These “bodies of knowledge” and “beliefs” cannot be revealed in the book due to the necessity of keeping them secret. They include “identifying the spirits that have induced pregnancy”.  

Much of this knowledge is held and shared only by senior women. Such knowledge of women’s business is held according to the precepts of indigenous law—the precepts are not stated or explained—such that knowledge is gendered and life-giving. This knowledge is dangerous in the wrong hands and the most powerful of that knowledge, if shared inappropriately, may cause fatalities and other destructive consequences. It is held by appropriate elders and passed on to younger generations in a most careful way. 

This approach may explain why the reality for, particularly remote, indigenous communities is closer to the chaos inflicted on individuals and families by superstition, humbugging and secret business, as described by Bess Nungarrayi Price to Rachael Kohn, reported in the January-February 2024 edition of Quadrant.  

Of course, one cannot have an understanding of the necessity of separating church and state if one doesn’t have a state. Indeed the “White Australian system of regulating life through institutions such as schools and other governmental regimes” is derided in the book as destructive of Aboriginal law. Not only is indigenous law not promulgated, sometimes not even accessible, and not available for people to be guided by until they fall foul of it, there are no Aboriginal institutions to regulate and administer the law, no courts or legislature as included in Finnis’s desiderata. The book claims such structures exist, but the evidence is thin. This lack of political institutions marks a central and fundamental problem with the assertion that indigenous law is a functioning legal system (or systems). A couple of examples from the book are instructive. 

The makarrata 

One story concerns the makarrata or “dispute-settling ceremony”. There have been calls before and since the 2023 referendum for the establishment of a “Makarrata commission”. The Uluru Statement states that makarrata is a “coming together after a struggle”, it will supervise truth-telling and agreement-making, and is the culmination of its agenda. This book reveals that a makarrata is nothing of the sort. Langton first read about makarrata in a book by a white Australian, W.E.H. Stanner, Dreaming & Other Essays, in which he described a duel between two Aboriginal men as a means of settling a dispute. Another witnessed by Stanner involved pairs of men armed with spears rushing at each other in a crowd of more than 100 combatants. Langton herself saw a makarrata at a sports carnival which consisted of an older man throwing spears at a younger man. This is how a man with serious grievances against another called him to account. The authors also describe in Chapter 3 the annual Warlpiri Jardiwarnpa “purification ceremony” held in the Tanami Desert in order to lay to rest all disagreements, enmities and hostilities of the year gone by, using the searing hot desert ground and burning sheaves of grass to purify the participants. 

A makarrata, “the ceremony in which armed men execute revenge and settle disputes”, is depicted in the film Ten Canoes, the book tells us. As that depiction made clear, spears are thrown, sometimes there are fatalities, and it doesn’t really matter if the person killed is innocent of causing the original grievance. This ceremony is clearly nothing more than a version of trial by combat, an ancient continental means of determining guilt or innocence. In England its limited existence as wager by battle was replaced by jury trials in 1216. It was described by Edmund Burke as “superstitious and barbarous to the last degree”. There can be no real argument for its introduction in Australian law. 

Typically, the authors miss the significance of the makarrata as they record it. Such a ceremony does not represent a working legal system, but reflects the absence of a legal system, or the failure of any legal system to effectively quell disputes without resorting to superstitious belief that he who dies in combat is the guilty party, or at least a proxy for the guilty party, whose death ends the dispute by a form of blood payback. 

The actual makarrata is therefore not a forum for making peace and coming together after a struggle; its true role in indigenous culture was a method of bringing blood feuds to an end by violence. To suggest that it had some peaceful role in indigenous culture as a way of making that culture appear to be only concerned with peaceful settlement of disputes is false. What the Uluru Statement puts forward as a Makarrata commission is not an actual makarrata and is not expressed as a coming to agreement by mutual spearing. It is a modern Australian construct given a semblance of indigenous character. Its intentions could well be interpreted as malevolent, as the “Road Map” attached to the Uluru Statement makes clear. The proposed makarrata will be used to confront the Australian white population with its historical crimes, and also to take over the role of the federal Native Title Tribunal (see Quadrant Online, “The Hidden Documents Behind the Uluru Voice”, September 13, 2023). 

The ownership of land, constitutions and sovereignty 

Typical activist confusion occurs during the conventional attack on the introduction of the British legal system of land tenure as a means of denying the indigenous people their “sovereignty” over the land.  

Ownership of the land is asserted in the book to be a sacred connection or spiritual affiliation established through descent from the ancestors. It is “bestowed” by some unrecorded and forgotten means by the original ancestors and passed down the generations by luku, which appears to be a combination of the initial entry into the bedrock of some particular site by an original ancestor and the repetitive practice of performing and re-performing everyday activities on the same land, though no strictly fixed borders are observed. This process is also the foundation of the law, or rom. The continuous use of land by such a process, and without interference since 1788, may now form a basis for native title after the Mabo judgment and the legislating for native title claims. However, the book seeks to use the recognition of land use in this manner as a springboard for the establishment of a quite different thing: sovereignty, with all its current political ramifications. 

Engagement by indigenous people in observing luku and rom is said by some magic effect to produce “the closest to approximating the concept of ‘sovereignty’ in English”. The authority footnoted to this extraordinary assertion refers to a 2004 publication authored by Professor Corn and Joe Neparrna Gumbula in a book of essays edited by Professor Langton amongst others. Back on page 29, in Law, in his “personal perspectives” section of the book, Professor Corn describes his relationship with Joe Gumbula, a Yolngu leader in Arnhem Land who, he says, “shaped my thinking”. A planned book on Yolngu cultural concepts in 2006 was “unable to find a mature enough publisher”, but it seems from the footnotes that Professor Corn has succeeded in developing a body of his own co-publications with such Aboriginal characters, used as authority for his theories about indigenous law in a belt-and-braces academic strategy. 

It is asserted that the Yolngu hold their “homelands” under “the dual Yirritja and Dhuwa constitutions” under which all Yolngu clans are grouped. The source of the constitutions is the “Yolngu Knowledge Constitution”, a painting made in 2002 by Joe Gumbula. It purports to show how the Yolngu are subject to “three different levels of government” but even these are “enacted through three different levels of ceremonial performance” which “enact a wide array of legal processes” including initiation of boys into bachelorhood, healing and palliative care, extensive funeral and purification rites, diplomatic exchanges between clans and resolving disputes and disciplining offenders. No detailed examples are given of these legal processes. No evidence, by painting or otherwise, exists to support the contention that these are ancient laws which “constitute” a political entity.  

The middle level of government, the ngarra, is said to be “an important legal chamber in which jural decisions are seriously discussed and made binding” by men. Though the decisions are said to be binding, lest it be thought that the law was undemocratic, the authors interpret the painting as meaning that the men engage in a further ceremony with the women and children, who may indicate consent to the decisions by walking into the sea and arm-washing. Even here, not all legal matters are available to all people: the innermost knowledge of the original ancestors and their foundation sites are not normally communicated outside closed ceremonial contexts, though all “citizens” may request to have this knowledge fully explained to them before they pass away. 

This staged process of decision-making through linked dhuni and ngarra ceremonies is a bicameral parliamentary system, with two legislative chambers, and the legal decisions made through it are its binding acts of parliament. (Footnote authority: publication by Corn and Gumbula.) 

It is difficult not to conclude that this is a piece of special pleading, the result of an indigenous academic being co-opted by Professor Corn into co-writing a description of indigenous cultural practices using Western political notions as descriptors in order to give the indigenous practices a familiar legal status they otherwise do not have, lent authority by the fact that an educated indigenous leader is a named co-author. Professor Corn’s fingerprints are all over this process: he has also co-authored publications with Wanta Patrick Pawu (to describe as a complex legal system the tribal marriage taboos and the nine-grade formal educational system of the Warlpiri—the only known system of formal education in Australia before colonial schools—again by carrying out song ceremonies) and Mandawuy Yunupingu (for the claim that Yolngu-painted “likanbuy” designs on two panels installed in the Yirrkala Methodist Church in 1963 are in fact assertions of Yolngu sovereignty), all used as footnote authorities in the book. 

Langton and Corn also claim that: 

Before the First Fleet founded the Colony of New South Wales at Sydney Cove on 26 January 1788, Indigenous bodies of polity held the only governmental structures to exist in Australia.  

Unfortunately, their borders were “only loosely defined and generally unimportant in Indigenous property laws”, and, despite that description, are demarcated by “a combination of intersecting traits, including their regional natural environments, their overarching systems of social organisation and their distinctive traditional styles of ceremonial song, dance and design”. The claims made by the book always return to a central fact: that indigenous law found its sole expression in song and dance ceremonies, and contained very little of the indicia required of a legal system by Finnis and Hart. The reader is expected to believe that an entire legal system has been maintained and transmitted by a form of Chinese whispers over 65,000 years, a matter impossible to verify. Quoting demands for legal recognition of fictional “jurisdiction”, “sovereignty” and “legal tenure” made in bark petitions assembled in the modern era by activists does not change this fact. 

An oddity of the book is that though Professor Langton grew up in an Aboriginal community in Queensland, she says that it was not until she was an adult that she understood that there was such a thing as Aboriginal laws. Indeed, she states that it was only in 1981 that she heard anyone articulate the fact that indigenous laws existed. This was Eddie Mabo. If indigenous law existed in the manner claimed by Langton and Corn, how can it be that Langton’s own experience suggests there was no such legal system evident in day-to-day life? 

Langton seeks to rely on the Mabo judgment, with its dismissal of the doctrine of terra nullius, as another plank supporting the claim of original indigenous sovereignty. The High Court was addressing the issue of land ownership in Mabo, not sovereignty, and had made clear in its judgment in 1993 in Coe v Commonwealth that there had not existed any indigenous sovereignty or sovereign nation because the indigenous people had no political structures or institutions with which to assert sovereignty as a people at the time of the British visitations to Australia. Mabo did not change this, but Professor Langton does not recognise the limits of the judgment and confuses the issue of establishing local rights to land with that of the political sovereignty of the indigenous people by asserting that terra nullius was an imperial fiction that Australia “belonged to no one” and its rejection opens the way to a recognition of indigenous sovereignty. She states that the Uluru Statement from the Heart is an attempt to create a “coexistence of ancient and pre-existing Indigenous polities or nations with the Commonwealth of Australia” through the Voice.  

Faced with the unlucky historical facts, the activists’ new approach is to redefine sovereignty. “Sovereignty, as I see it,” Langton writes, “is the legal personality of Indigenous polity and a social complex that is at once deeply emotional, social and political.” Indigenous culture had not developed a sense of a legal personality, or the structures or institutions with which to project one—there were no Aboriginal corporations until the Commonwealth Parliament created them. However, Langton deflects this absence by writing:  

It seems to me that the concept of sovereignty developed in the Western legal tradition to describe nation states is artificial if applied to the Indigenous relationship to land that lies at the core of our legal systems. A more important concept is reflected in the opinion of Judge Fouad Ammoun of the International Court of Justice in 1975 in the Western Sahara case. 

This was the case where the sovereignty of some African people was determined to be established by “a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the man who was born therefrom remains attached thereto, and must one day return thither to be united with his ancestors”. These words are repeated in the Uluru Statement. Thus, sovereignty may also now be established through spiritual affiliations with land and water ultimately sanctioned by religion, and this kind of sovereignty “pre-dates the British Crown”. This is an admission that a good deal of the special pleading about land tenure systems and inheritance of homelands in the book is either incorrect or insufficient, and it still confuses the concepts of land ownership with sovereignty, because sovereignty is not achieved by applying it as a concept to the relationship of a people to land. 

This idea of sovereignty is stolen from another culture articulated through an international Western legal institution in a decision that had nothing to do with Australian Aborigines and does not apply to Australia. Nonetheless, the same notion of spiritual connection has recently been used by the majority of the High Court in the 2020 Love v Commonwealth decision to justify preventing the deportation of a convicted person who had Aboriginal blood but had not been born in Australia or possessed of Australian citizenship. In that judgment Chief Justice Kiefel rejected reliance on Mabo to extend indigenous rights: 

The common law cannot be said by extension to accept or recognise traditional laws and customs as having force or effect in Australia. They are not part of the domestic law. To suggest that traditional laws may be determinative of the legal status of a person in relation to the Australian polity is to attribute sovereignty to Aboriginal groups contrary to Mabo and later cases. 

But is it only a matter of time before the majority of the High Court uses the doctrine to conjure up indigenous sovereignty? Would not this be succumbing to the same phenomenon which European peoples struggled to exclude from operation within a civilised state—the pronouncement of legal truths through spiritual interpretations, foist upon the general population by the “priests” of the religious orders, in this case indigenous elders and activists. To some extent, if the main aim of political activism is to enrich indigenous organisations through land ownership, it might be asked why any of this matters. Under the NSW Aboriginal Land Rights Act 1983 local area land councils can make, and have been making, claims on Crown Land resulting in a transfer of freehold to them without having to show any cultural association with the land at all.  

The book demonstrates a curious unresolved tension present in much populist indigenous literature—the desire on the one hand to differentiate by presenting indigenous culture as marvellously spiritual, emotional, homely, original, benign and sunk in the environment, and not susceptible to enlightenment analysis, but on the other hand a wish to promote its relevance and utility by suggesting it contains sophisticated structures that are similar to Western legal, social and political systems. Organs of state do not develop when the level of political concern that a people have is limited by low population, abundant resources and low-stakes conflicts over marriage negotiations, infidelity and wife-stealing. It isn’t enough just to illustrate the colourful panoply of Aboriginal culture, and its profound symbiotic relationship with the land and sea, because, as T.S. Eliot wrote in The Hollow Men, “between the idea and the reality, between the motion and the act, falls the shadow”. 

The book does not dispel Hart’s doubts about primitive legal organisation in Australia. The legal system and its appurtenant claim of “sovereignty” proposed by the authors is a creature born of stitching together contradictory portions of indigenous religion, pretended legal institutions and stolen Western-developed notions of the noble savage’s sentimental attachment to the land. Metaphorically this Frankenstein clambers across the Australian literary and political landscape, a Heath Robinson contraption squeaking at the hinges and bolts, an ominous Trojan Horse, promising the gift of understanding and peace, but with a bellyful of activism yet to be released, slouching towards Canberra to be born. 

Law: The Way of the Ancestors 
(“First Knowledges” series)
by Marcia Langton & Aaron Corn 
Thames & Hudson, 2023, 227 pages, $24.99

Matthew White SC is a Sydney lawyer