Aboriginal traditional lore

Contributed by PaulSheiner and KelsiForrest and current to 27 July 2018

For thousands of years before the arrival of Europeans in Australia, Aboriginal and Torres Strait Islander peoples had well developed and defined systems of lore. This is called Aboriginal traditional lore. The content of the law varies depending on the specific Aboriginal or Torres Strait culture or group, but there are some broad matters held in common by a number of different Aboriginal and Torres Strait Islander cultures.

For Aboriginal and Torres Strait Islander peoples, lore was created during the Creation Period by ancestors travelling the land establishing the world and the code of life. That law has been handed down for tens of thousands of years by dance, stories, remembrance and celebrations of the sites that were the scenes of significant events involving the ancestors.

The lore covers rules of living, for example skin groups, broad roles of men and women, economic affairs, marriage and other activities,. Some parts of the lore are secret and can only be discussed by certain people, for example men’s business and women’s business.

Elders are the keepers of the lore. They know most about their specific culture. Elders who are fully initiated are very senior people who hold considerable wisdom and knowledge. Their opinions about the lore carry the most weight.

Families are responsible for raising their children to know the correct behaviour under the lore, and there are sanctions for breaking the law. Most problems are handled by a meeting of elders.

It is noted that not all Aboriginal groups still practice lore in the traditional sense largely due to the impacts of colonisation but there are parts of the Desert, Pilbara and Kimberley regions that still actively practice traditional lores and customs. This is something to be mindful of, particularly in the summer months when it is lore and culture season and people may be unavailable for long periods of time.

After a six year Inquiry, the Law Reform Commission of WA published its final report titled ‘Aboriginal Customary Laws: the Interaction of Western Australian Law with Aboriginal Law and Culture’ in 2006. The Report produced widespread recommendations which included:

• there should be a whole of government approach to Aboriginal service and program provision and Aboriginal participation in decision-making (recommendation 1);
• cultural awareness training for government employees and contractor who have regular dealings with Aboriginal people and all police officers (Recommendations 2, 56);
• establishing Aboriginal courts (Recommendation 24);
• Aboriginal customary law and other cultural factors to be taken into account in relation to bail and sentencing (Recommendations 33, 34, 36, 37,38, 39).
• The ability to have single gender juries (Recommendation 41);
• Establishing a diversionary scheme for young Aboriginal people to a community justice group (Recommendation 50);
• Establishing police protocols for determining whether an Aboriginal person requires an interpreter (Recommendation 53);
• The prison funeral attendance policy to expressly include recognition of Aboriginal kinship and other important cultural relationships (Recommendation 59);
• The Coroner’s Regulations 1997 (WA) to be amended so that cultural, spiritual or customary beliefs to be taken into account in deciding whether to order post-mortem examination (Recommendation 76);
• Formal recognition by the Family Court of Aboriginal marriages arising from lore and custom (Recommendations 83, 84 and 85);
• That the Evidence Act 1906 (WA) be amended so that:
  • there is an exception to the Hearsay and Opinion Rule for evidence relevant to Aboriginal customary law (Recommendation 109);
  • The Court may order certain information should not be referred to in proceedings because it would be offensive to do so under Aboriginal customary law (Recommendations 112, 113);
  • Aboriginal people can give evidence about Aboriginal customary law in groups (Recommendation 115);
  • Evidence can be taken on country (Recommendation 116);
  • A party or witness has the right to an interpreter in court proceedings (Recommendation 120); and
  • There be allowance for witnesses to provide evidence in narrative form.
  • That procedural legislation be amended so that an Aboriginal person can apply for a judge or magistrate of a particular gender to hear a case (Recommendation 114); and
  • Establishing a statewide Aboriginal language interpreter service (Recommendation 117).

To date, many of these recommendations have not been implemented or where they have, it has been on an ad-hoc and organisation specific basis.

In both the criminal law jurisdiction and the civil law jurisdiction, the question of whether and how to take Aboriginal lore into account is left to the discretion of the court. The outcome depends on the particular facts in each case.