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Indigenous Law Hetorm Update

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Indigenous Law Hetorm Update [ features ] Indigenous Law Hetorm Update: An Interview with Mark Harris__________________________________________________ _ By Craig Burrows, Aitken Walker & Strachan and Jane Levin, Freelance Writer and Editor magnum iy yi ark Harris grew Where did the idea of the Koori rights, intellectual property rights and resource I\ /1 up in a Victorian Court system stem from? rights (particularly access and use of water). ® I V I country town with a The idea of the Koori Courts stemmed directly Whether the current political climate will allow K 4* Jflj^H large Aboriginal population. from the commitments made in the Victoria for a revived form of customary law recognition After completing his Aboriginal Justice Agreement between the to fill the gap left by the decline, or the demise, law degree, he lectured Victorian State Government and representatives of native title remains to be seen. - at Monash University, from the Victorian Aboriginal Justice Advisory Hi^ Hi Gippsland Campus, before Committee and the Chairpersons of the Vict­ What are the dangers in giving commencing at La Trobe University in 1994, orian ATSIC Regional Councils. The agreement formal recognition of where he is currently a Senior Lecturer. From was itself an outcome from the 1997 Ministerial customary law? 1996-1998, Mark was involved as a legal Summit on Indigenous Deaths in Custody that The danger of allowing for customary law to be researcher and lawyer with the Mirimbiak considered how the recommendations of the recognised by the Australian legal system is that it risks the creation of a hybridised form of Nations Aboriginal Corporation (the native title 1991 Royal Commission into Aboriginal Deaths traditional law, which could actually serve to representative body for Victorian native title in Custody could be given effect. supplant the traditional forms of authority and claims). Within that role, Mark worked with a social control. There is a vast gulf between variety of indigenous groups, including the What is the scope of the operation being aware of the reality of Aboriginal Wurundjeri people who are the traditional of the Koori Courts? Consistent with the operation of the Koori customary law and knowing enough about it to owners of the area that much of Melbourne now Courts is the requirement that the offender be able to represent a client in a court matter. occupies. Mark has also been extensively plead guilty. The Magistrate is assisted in involved in negotiations between government, determining the appropriate sentencing by Conclusion native title holders and industry proponents in Aboriginal elders or "respected persons” from It seems that in light of the recent High Court the Eastern Gas Pipeline. the Aboriginal community. It is important to note decision in the Yorta Yorta case and the that the Koori Courts do not deal with juvenile Victorian Native Title negotiations with the In your experience, how com­ offenders or sexual offences/domestic Wotjobaluk people, we have a long way to go mitted to indigenous lawreform is violence matters. before our indigenous peoples can restore their the Australian government? faith in the substance and pace of Australian The Howard Federal Government has been The Victorian Koori Court model drew from the indigenous law reform. ■ faithful to the pledge of the former Deputy PM, Nunga Courts (Nunga being a term used for Tim Fisher, in delivering ‘bucketloads of indigenous persons from South Australia) that 1 In Yorta Yorta Aboriginal Community v State of Victoria and Others [2002] HCA 58, the High Court held that future extinguishment' and the previous State were initiated in the Adelaide Magistrates' Court claimants would have to prove they were a community with a government of Jeff Kennett was dogmatic in its by Magistrate Chris Vass. In NSW and system of laws and customs that had “a continuous existence resolve to oppose any form of native title. Queensland, other models are used. and vitality” since white settlement. The claim made by the Yorta Yorta peoples related to land and waters covering 2,000 square kilometres along and around the Murray and Goulburn When the Bracks Government was elected, the In the wake of the Mabo decision , Rivers. Attorney General indicated that there would be do you believe that our legal 2 The Wotjobaluk claim was lodged in 1995 and involves over 400 parties including 300 farmers in the Wimmera Region. a new approach to the resolution of native title system is sufficiently structured The ‘in principle’ agreement between the Wotjobaluk people matters. After the disappointment of the Yorta to give adequate recognition to and the Bracks government was signed in October 2002, Yorta High Court decision/ the indigenous customary laws beyond native allowing the Wotjobaluk people non-exclusive hunting, gathering, camping and fishing rights along the Wimmera communities of Victoria certainly needed their title rights? River, without limiting public access and various types of faith in the native title process. In many ways it could be argued that the existing licences. The Federal Court has set a September 19 deadline for all parties to the claim to indicate where they recognition of customary laws could fill the void stand in relation to finalising an agreement. The establishment of an expert panel to assess or space that native title once, theoretically, 3 In NSW the model that was introduced was the ‘sentencing native title claims and to avoid the possibility of could have filled. It could be seen that Mabo circle’ sentencing scheme, that was originally utilised by First litigating every native title application was Nations peoples in the Yukon but later was adapted to a represented the high tide mark of indigenous number of Provinces in Canada. The NSW Government has certainly a positive initiative. Having said that, it rights and we have witnessed a gradual ebb in authorised a two-year pilot program in Nowra and there is would seem that the Government has baulked the recognition given by either government or also a trial of the sentencing circle model operating in Dubbo. at giving anything substantial to indigenous In Queensland the same model of a Murri Court (Murri being the courts. a term for an Aboriginal person from Queensland) has been Victorians if the current Wotjobaluk Agreement- introduced. In-Principlef is any guide... The content of the Now that the sui generis nature of native title 4 Mabo v. Queensland (Ho. 2) (1992) 175 CLR 1. Agreement in Principle gives the Wotjobaluk has been so substantially compromised and 5 There is currently a review being conducted in WA as to the possibility of recognising aspects of Aboriginal customary little more than was gained under different circumscribed, it might be argued that there is law. For many communities in remote parts of Australia their legislative arrangements before native title was a need for customary laws to be recognised in traditional law remains the main determinant of social recognized at common law. respect of things such as hunting and fishing responsibilities. 8.
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