The Law and the Lore: Working with Indigenous Australians

Two laws, one land (The Law and The Lore)

The Aboriginal peoples of Australia had a complex system of law long before the establishment of British law in Australia, their system of law is often referred to as “traditional law”, however “rules of law and norms of politically appropriate behavior were probably not distinguished” (Meggitt, 1962).

Traditional law is and was not a set of laws that all Aborigines throughout Australia used. Traditional law refers to the common features of acceptable and unacceptable behavior in Aboriginal communities. On this web-site this is also referred to as 'traditional lore' and 'the lore'.

Traditional lore is comparable with the ten commandments, it has rules regarding “homicide, sacrilege, sorcery, incest, abduction of women, adultery, physical assault, theft, insult, including swearing, and the usurpation or ritual privileges and duties” however traditional lore also makes not doing things an offence, for example not sharing food is an offence under traditional lore.

There were no formal courts like British courts under traditional lore, instead problems regarding traditional law were handled by elders- the oldest people in the community.

Despite the complex Aboriginal system of lore(law) that was in place before 1788 England declared Australia terra nullius- not inhabited by peoples with settled laws or customs.

When England set up British law in Australia Aborigines were expected to follow it and be bound by it even though they had not agreed to it. At the same time Aborigines expected the British to follow “traditional lore” even though the British had not agreed to it.

In theory Aborigines were supposed to be protected by British laws but in reality they were not.
Aborigines could not effectively defend charges brought against them or bring charges against Europeans. This was because most Aborigines were not Christian (none were prior to 1788) and thus they could not testify in British courts.

Aborigines while being expected to follow British law had no input into the contents of the law through parliamentary representatives, they only received the right to vote in federal elections in 1962.
Some Aborigines and Torres Strait Islanders have continued to maintain a connection with the land that was taken from them by England, in recent years legal battles have been fought involving the rights to the Australian land.

In 1992 the High Court ruled in the Mabo case that Australia was not terra nullius in 1788, this has opened the door for more legal action including native title claims.

Source: Key points taken from: Two Laws: One Land, by Colin Bourke and Helen Cox

In the source article "traditional lore" is referred to as "traditional law".

Background

The term ‘law’ is a British concept that was first introduced to the Aboriginal peoples during the colonization period, whereby they were expected to abide by this new justice system.

The term ‘lore’ refers to the customs and stories the Aboriginal peoples learned from the Dreamtime. Aboriginal lore was passed on through the generations through songs, stories and dance and it governed all aspects of traditional life.

It is common to see the terms ‘law’ and ‘lore’ being used interchangeably. As a worker it is useful to remember that there is a distinction, although law is more commonly used. For the purpose of this website we will use the term ‘lore’.

Traditional lore is connected to ‘The Dreaming’ and provides rules on how to interact with the land, kinship and community. Aboriginal children learned the law from childhood, by observing customs, ceremonies and song cycles.

There are Aboriginal communities in remote parts of Australia where the traditional culture is the dominant way of life. Unfortunately ‘Traditional’ Aboriginal lore practices may not work properly for these communities because they largely conflict with the Australian legal system. For example the Australian legal system punishes the offender by imprisonment and isolation from their community. In Traditional lore, matters are often discussed between the offenders’ family and victim to decide the severity of the punishment and who will carry it out. The process is swift and the community can return to normal.

There has recently been a lot of media attention regarding the debate of Aboriginal Traditional lore versus the Australian legal system. As a Human Service provider you may be confronted with wider community views on this subject. It is important to recognize that Traditional lore is an integral part of Aboriginal culture. This will enable you to question the misconceptions you may confront within your community.

It will also help you to develop a better understanding of some of the difficulties that Aboriginal and Torres Strait Islander people experience when their cultural practices are not preserved.