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Indigenous Peoples: Issues in International and Domestic Law Ch. 2

Indigenous Peoples:Issues in
International and Australian Law


Two: Recognising Aboriginal and Torres Strait Islander customary law –
international and domestic law implications

The second seminar in the series was held on Thursday 20th November 2003 on the topic of Recognising Aboriginal and Torres Strait
Islander customary law: international and domestic implications.
The seminar
was chaired by Margaret Brewster, then President of the ILA (Australian Branch).
The President of the Human Rights and Equal Opportunity Commission, the Hon John
von Doussa, provided introductory remarks. Papers were presented by the then
Aboriginal and Torres Strait Islander Social Justice Commissioner, Human Rights
and Equal Opportunity Commission, Dr William Jonas AM, and Ms Megan Davis,
Faculty of Law, the University of New South Wales.

Papers presented at the seminar:

The Hon John von
- Introductory remarks

I’d like to begin by acknowledging the Gadigal People, the traditional
owners of the land where we are meeting today. On behalf of the Human Rights and
Equal Opportunity Commission, I would like to welcome you to this workshop on
the recognition of Aboriginal Customary Law.

This is the second workshop
that HREOC has co-hosted with the Australian Division of the International Law
Association. It follows a workshop on the international and domestic
implications of a treaty in Australia with Indigenous peoples that was held in
September 2002. On behalf of HREOC I’d also like to begin by thanking
Margaret Brewster, the President of the International Law Association, and Greg
Marks of the ILA for making the arrangements and agreeing to co-host this
workshop with HREOC. I think that we are developing a fruitful and interesting
collaboration through these occasional seminars and I look forward to our future

The issue of Aboriginal Customary Law is one of the most
difficult that we face in reconciling Indigenous and non-Indigenous legal
traditions in this country. Aboriginal Customary Law as a shorthand term refers
to Indigenous traditions and systems of law and governance across all areas of
cultural life. This includes what we would classify in the non-Indigenous legal
system as family law, intellectual property, marriage, criminal law, succession,
and systems of dispute resolution. Like the recognition of native title and the
debate about a treaty, it poses a challenge to the existing relationship of
Indigenous peoples with the State.

Decisions of the High Court, such as Mabo v Queensland (No.2), Coe v Cth and Walker v
, make clear that there is no room to challenge the assertion of
sovereignty by the Crown or for an alternative body of law to operate
independently alongside the Australian legal system. But this does not exclude
the possibility of more limited recognition, which the Australian Law Reform
Commission termed ‘functional recognition’, or for alternative forms
of incorporation of Aboriginal Customary Law within the mainstream Australian
legal system.

Such recognition could take many forms – from formal
legislative recognition and incorporation, or attempts to codify or regulate the
interaction of customary law with non-Indigenous systems; to less formal
recognition such as one-off consideration of customary law issues as a
mitigating factor in sentencing matters for criminal cases; to the even less
formal approach of influencing how officials, such as child welfare
or police, might exercise their discretion in situations where customary law
might be perceived to be a contributing factor.

How Aboriginal Customary
Law can be recognised within our mainstream legal system poses many challenges.
The challenges arise at two levels. The first is at a theoretical or academic
level, for example:

  • how do we ensure consistency in the circumstances in which Courts accept
    that Aboriginal Customary Law is a relevant factor to be considered in a case?

  • how, or indeed can, Aboriginal Customary Law be incorporated into the legal
    system in a way that does not breach the principles of non-discrimination and
    equality before the law?

  • are there justifications for legal pluralism by recognising a source of law
    making that does not fit within the three arms of government - the Judiciary,
    the Executive and the Parliament – that are the usual sources of law
    within our legal system? and

  • in recognising Aboriginal Customary Law, what are the limitations on
    recognition that should legitimately be imposed – compliance with criminal
    codes and consistency with universally recognized human rights are two
    limitations that are widely agreed, but are there others?

the second level, considerations of a practical kind arise. Customary Aboriginal
Law is not a static body of rules that apply equally throughout the country.
They have evolved in local areas having regard to all prevailing circumstances,
and for this reason differ in content from area to area and from time to time
and the customary laws continue to evolve and, at times, are even revived in a
way that fits the present circumstances of the community. If all of the
theoretical problems at the first level can be overcome, then I think there will
be real questions about how to determine what the relevant customary law is
which should be applied in a particular case.

The existence of relevant
customary law, and its contents, are likely to be treated as questions of fact
which will have to be proved by calling witnesses to give evidence about those
matters. This process is likely to add new complexities to the trial process.

I have had some experience sitting as a Supreme Court Judge in Vanuatu
where customary law is very much a part of the legal system. I have experienced
the practical difficulties in a criminal trial where the defendant sought to
rely on customary law and custom medicine as a defence to a sexual charge
involving a stepdaughter. Evidence had to be led on these questions. Human
nature being what it is, the prosecution and the defence advanced different
interpretations of the relevant customs, and it was left to the Court to decide
the true content of the custom, and
whether it could apply at all in the

There is another significant issue which may have to be
addressed if Aboriginal Customary Law is to be applied. It may become necessary
to determine whether the customary law is consistent with international human
rights as established by international conventions and customary international
law. It is generally recognised under international law, and by most advocates
for the recognition of Aboriginal Customary Law in Australia, that the customary
law must, to the extent of any
inconsistency, give way to internationally
recognised human rights. For example, international human rights law requires
that women not be subjected to violence, and that cruel or inhumane punishments
or death not be inflicted. The obligation to take measures to ensure recognition
of human rights under international law rests on the State. This means that the
State would have to remain involved, through a recognised court system, and the
courts would have to be the final arbiters of whether the operation of relevant
Aboriginal Customary Law in a particular case was consistent with human rights
recognised by international law.

I mention the practical difficulties of
establishing the content of customary law, and the need for the State to
continue to be involved to ensure the application of international human rights
law, to illustrate the difficulties of separating the rules and procedures of
the present Australian legal system from an Aboriginal Customary Law

All these issues look mainly to the limits of recognising
Aboriginal Customary Law. But from the perspective of reconciliation and the
coming together of two cultures, there is also the question of how can the
non-Indigenous legal system itself change and adapt to recognise Aboriginal
Customary Law. These are some of the issues that our speakers will grapple with
this afternoon.

At the risk of exceeding my role in welcoming you, can I
just mention a case which the Vanuatu Court of Appeal decided two weeks ago,
[Joli v Joli, Court of Appeal decision 7 November 2003] which concerned
whether the Matrimonial Causes Act, 1973, of the United Kingdom applied in
Vanuatu in so far as it made provision for a property settlement after a
divorce. In Vanuatu under a clause in the Constitution, laws which applied at
the day of Independence continue to apply unless the Parliament of Vanuatu has
passed legislation on the subject matter. Those pre-independence laws include
the laws of general application of England and France provided, however, that
the foreign laws pay sufficient regard to Vanuatu custom. An argument was raised
that the English notions of dividing property and adjusting proprietary
interests was inconsistent with the custom requirements for succession to land.
The importance of land and its succession is essential to Customary Law in

The Court of Appeal found there was no inconsistency between
the English legislation and custom because the English legislation, in directing
that the Court should take into account numerous considerations, included a
direction to the Court to take into account any other relevant circumstances.
The Court of Appeal held that the custom laws about succession to land and
inheritance were relevant circumstances, and the English legislation allowed
them to be taken into account and reflected in any order made by the Court. That
case shows that through a common statutory provision allowing the Court to have
regard to any other relevant matter, custom law could be recognised and taken
into account.

First, we will hear from the Aboriginal and Torres Strait
Islander Social Justice Commissioner at HREOC, Dr Bill Jonas who will provide a
domestic perspective. Commissioner Jonas will address issues of human rights
compliance as well as providing some comments on recent developments in
Indigenous community justice mechanisms and the report of the Northern Territory
Law Reform Committee, released a fortnight ago. Our second speaker will then be
Ms Megan Davis of the Gilbert and Tobin Public Law Centre at the University of
New South Wales. Ms Davis has served an internship in the Office of the United
Nations High Commissioner for Human Rights and has participated as an advisor to
ATSIC and others in negotiations on Indigenous rights in international forums,
including the United Nations process on the Draft Declaration on the Rights of
Indigenous Peoples and the World Intellectual Property Organisation. Ms Davis
will talk about the international implications of recognition of Aboriginal
Customary Law, including on issues relating to intellectual property regimes.

Dr William Jonas
- The Recognition of Aboriginal Customary Law

I’d like to begin by acknowledging the Gadigal People, the traditional
owners of the land where we are meeting today.

I’d like to begin by
acknowledging that this is the first public event that I have hosted since the
appointment of Justice John von Doussa as President of the Human Rights and
Equal Opportunity Commission. My fellow commissioners and staff have been
delighted by his appointment and I am very pleased that he is able to join us
here today.

Now I have to admit – we have been totally overwhelmed
by the response to this workshop. We didn’t ask people to RSVP, although
many of you did – so many in fact that we started to get very worried
about how many people were actually going to turn up and so decided to change
the venue so you could all fit in the room. I have been wondering why exactly
there is so much interest. I thought that I would start by posing a question to
you, which is why is the issue of Aboriginal Customary Law of such interest to
such a wide range of people? Hopefully we can reflect on this in discussion
after the presentations.

I wanted to begin by reflecting on a workshop
that I attended in Madrid last week. The workshop was organised by the Office of
the United Nations High Commissioner for Human Rights to support the work of the
UN Special Rapporteur on the situation of human rights and fundamental freedoms
of Indigenous people, Professor Rodolfo Stavenhagen. It was on the theme of
Indigenous peoples and the administration of justice. Approximately 25 experts
from across the world were convened to discuss the key issues facing Indigenous
peoples in criminal justice related areas, to identify best practice and
solutions to this situation, and to make recommendations to relevant actors
within the United Nations system.

Even though I have now participated in
many UN forums, I remain quite surprised by the similarities in the situation of
Indigenous peoples in differing regions of the world. Not only are there similar
problems identified as existing for Indigenous peoples no matter where they
live; but there are also similar approaches being adopted to address this
situation and a commonality of the underlying principles and assumptions that
need to be recognised if progress is to be made or extended.

the workshop we heard examples of the importance of recognising Indigenous
customary law systems and developing and strengthening Indigenous community
justice mechanisms in order to break the cycle of offending by Indigenous
peoples, deal with the underlying causes which lead to disproportionate rates of
contact at all stages of the administration of justice and strengthen Aboriginal
communal structures. During the workshop the Special Rapporteur, Professor
Stavenhagen, asked two sets of questions to the experts which he saw as crucial
in addressing how Aboriginal customary law systems could be recognised. He was,
he confessed, playing devil’s advocate, but his two questions will be
familiar ones to you. He asked:

First, how do you make the
legal system work better for Indigenous
peoples and how do you
incorporate Indigenous legal systems into the
mainstream legal
process without violating the universality of human
rights? In other
words, how do we recognise Aboriginal customary law in
a manner that
is non-discriminatory?

And second, providing that you can
recognise Indigenous legal systems in
a manner that is
non-discriminatory, how do you guarantee individual
human rights
within Indigenous communities, particularly for women and

These questions really are the key issues that have to be
addressed for there to be much progress in recognising Aboriginal customary law
systems. They are also the issues around which the international and domestic
implications of recognising Aboriginal customary law converge. In relation to
the first set of questions, for example, the position of our federal government
is clear. In its response to the Council for Aboriginal Reconciliation’s
documents, the government states that it:

is unable to endorse
the approach to customary law in the Council's
Declaration as the
Government believes all Australians are equally
subject to a common
set of laws... Neither the government nor the general
is prepared to support any action which would entrench
special or different rights for one part of the community.

In similar
debates in recent years I have noted that this type of concern is misplaced for
practical reasons. In the Social Justice Report 2000, I stated that the view of
equality that this reflects ‘however popular, does not reflect reality.
The view that everyone should be treated the same overlooks the simple fact that
throughout Australian history Indigenous peoples never have been... The failure
to provide us with the same opportunities as the rest of society in the past
means that to now insist on identical treatment will simply confirm the position
of Indigenous people at the lowest rungs of Australian society’ (Social
Justice Report 2000, p19).

These types of comments also reflect what I
consider to be a common misunderstanding of the principles of non-discrimination
and equality before the law. In international law, the promotion of equality
does not necessitate the rejection of difference. It accepts that there are
circumstances in which differential treatment is warranted and thereby

In the decision of the International Court of Justice in the
South West Africa Case, Judge Tanaka explains this principle:

principle of equality before the law does not mean the absolute
equality, namely the equal treatment of men without regard to
individual, concrete circumstances, but it means the relative equality,
namely the principle to treat equally what are equal and unequally what
are unequal... To treat unequal matters differently according to their
inequality is not only permitted but required.

Such an understanding of
equality, often referred to as 'substantive equality', takes into account
'individual, concrete circumstances'. It acknowledges that racially specific
aspects of discrimination such as socio-economic disadvantage, historical
subordination and the failure to recognise cultural distinctiveness must be
taken into account in order to redress inequality in fact. The alternative
approach, often referred to as 'formal equality', relies on the notion that all
people should be treated identically regardless of their differing
circumstances. Such an approach 'denies the differences which exist between
individuals and promotes the idea that the state is a neutral entity free from
systemic discrimination.'

The Human Rights Committee, which oversees
implementation of the ICCPR, and the Committee on the Elimination of Racial
Discrimination, have adopted a substantive equality approach to the meaning of
non-discrimination. In accordance with this, there are basically two types of
differential treatment that are permissible in order to achieve equality, and
which are considered to be non-discriminatory. These are special measures (or
affirmative action) and actions that legitimately recognise cultural difference.
Special measures are remedial provisions aimed at raising segments of the
community who are not equal to a position of equality within society. They are
defined in Article 1(4) of the International Convention on the Elimination of
All Forms of Racial Discrimination.

In addition, there are also certain
circumstances where it is appropriate to recognise the distinct cultural
characteristics of particular groups, especially minorities. The critical issue
is to identify those differences that justify a differentiation in treatment.
Judge Tanaka in the South West Africa Case stated that differences which
minority groups may choose to protect are the relevant differences, rather than
oppressive distinctions ascribed in order to justify the reduction of rights.
The purpose of the intended measure must be protective and not motivated by
discrimination itself; and for this reason it cannot be imposed. In other words,
there must always be the choice for, in this case Indigenous peoples as the
intended beneficiaries, to accept or reject the proposed form of

In Australian law, section 8(1) of the Racial
Discrimination Act 1975 (Cth) exempts special measures from the prohibition of
racial discrimination in section 9 of the Act. In explaining the requirements
for a special measure under the Racial Discrimination Act, Justice Brennan has
stated that:

  • The wishes of the members of the class are relevant - a special measure will
    not bring about advancement if it is conferred against their will, and
    similarly, an advancement cannot confer benefits which convert members of the
    class from a disadvantaged class into a privileged class;

  • The special measure must not maintain separate rights; and

  • The special measure must not be continued after the objectives for which
    they were taken have been achieved - although this does not mean that it is
    necessary that the special measure be created with a finite time for its

Justice Brennan made these comments in Gerhardy v
, which remains the lead case on the meaning of special measures in
Australian law. The High Court has been extensively, and in my view rightly,
criticised for its decision in this case. In Gerhardy, the High Court found that
land rights legislation constituted a special measure and was not racial
discriminatory. The criticism of this comes from the application by the Court of
a formal equality approach to interpret the Racial Discrimination Act 1975
(Cth). This has been largely due to the Court's reliance on justifying
Aboriginal land rights as a special measure, rather than embracing a more
expansive understanding of equality as provided in international law. Such an
understanding could have allowed recognition of land rights as a legitimate
differentiation of treatment.

The difficulty of the High Court's
approach in Gerhardy v Brown has been highlighted by the recognition of
native title in Mabo. The source of recognition of native title is the
traditions and customs of Aboriginal and Torres Strait Islander peoples rather
than an act of recognition by the Parliament. Native title continues to be
recognised until such time as it is extinguished by the Crown or until the
traditional laws and customs on which it is based are no longer observed. There
are also a number of relevant differences between native title and ordinary
forms of title that my office has previously argued meet the test of being
'reasonable, objective and proportionate' and accordingly mandate appropriately
different treatment to achieve substantive equality.

It is therefore not
possible to characterise the basis of recognition of native title as temporary
in scope or as having a finite period for recognition as would be required to
qualify as a special measure. The High Court has, albeit briefly and without
reconsidering its ratio in Gerhardy, recognised this in its subsequent
decision on native title in Western Australia v Commonwealth (1995).
There the Court characterised the original Native Title Act 1993 (Cth) as
'either a special measure... or as a law which, though it makes racial
distinctions, is not racially discriminatory'.

In my view, based on
these principles and the interpretation of them in Australian courts, Aboriginal
Customary Law could be recognised as a legitimate differentiation of treatment
that does not offend the prohibition of racial discrimination in sections 9 or
10 of the Racial Discrimination Act 1975 (Cth). It is, however, uncertain
whether the High Court will follow through the consequences of its
characterisation of the Native Title Act in Western Australia v
by recognising this. There can be no doubt, however, that
should they take a more limited approach, in accordance with the Court's
reasoning in Gerhardy v Brown, they would find that Aboriginal Customary
Law falls within the exception to the prohibition of racial discrimination in
the Racial Discrimination Act by being accepted as a special measure.

either basis, the concerns expressed earlier that recognition of Aboriginal
Customary Law creates a situation of favourable treatment for Indigenous peoples
that results in unequal treatment or discrimination against non-Indigenous
people can therefore be rejected.

We can then move on to the Special
Rapporteur’s second question – namely, guaranteeing individual
rights. I consider this issue in depth in my submission to the Northern
Territory Law Reform Committee’s inquiry into customary law from earlier
this year. That submission, and one focused on the gender dimensions of
recognising customary law by the Sex Discrimination Commissioner, is available
on the internet from HREOC’s website.

I will only highlight a few
key points about this issue here due to time. First, it needs to be recognised
that all human rights are indivisible, with no hierarchy of recognition of these
rights or special status given to one over the other, including group versus
individual rights. In many instances there will be no conflict between
individual and group rights and they will be able operate in an interdependent
manner. As my predecessor as Race Discrimination Commissioner noted in

The claim that collective rights jeopardise traditional individual rights
misunderstands the interdependent relationship between group and individual
rights. The apparent tension between individual and collective rights is
partially resolved once it is recognised that certain individual rights cannot
be exercised in isolation from the community. This is particularly the case in
indigenous communities... It is often the case that the protection and promotion
of collective rights is a pre-requisite for the exercise and enjoyment of
individual rights. The right of an Aboriginal or Torres Strait Islander person
to protect and enjoy his or her culture, for example, cannot be exercised if an
indigenous culture is struggling to survive within the majority culture and the
indigenous community has no right to protect and develop its culture. If rights
are not granted collectively to indigenous peoples which enable them to defend
their culture, the practice of their religion and the use of their languages,
the result is unequal and unjust treatment.

This reflects a vital point
about the recognition of Aboriginal Customary Law - namely, the recognition of
Aboriginal peoples' minority group rights and collective rights have the
capacity to strengthen social structures within Aboriginal communities as well
as the observance of law and order.

Second, as discussed above,
there is a crucial issue of consent that is relevant to an activity or form of
recognition being accepted as non-discriminatory or a special measure. As the
Sex Discrimination Commissioner noted in her submission to the NT customary law
inquiry, too often women’s voices are excluded from consultation and
negotiation processes. It is quite critical that such voices are not ignored,
particularly in determining the consent or willingness of a community for
customary law processes to be recognised or to create some impositions on that

Third, however, there will be other circumstances where
individual and collective rights are in opposition and a balance must be struck.
This does not mean that collective and individual rights are irreconcilable.
Decisions made under the Optional Protocol to the ICCPR and General Comments
interpreting the scope of the ICCPR by the United Nations Human Rights Committee
in relation to Article 27 of the Covenant, for example, provide guidance on how
this contest between collective and individual rights should be resolved.

In relation to Article 27 of the ICCPR, the Human Rights Committee has
noted that there is positive obligation on States to protect minority group
rights and cultures. The Committee has also placed limits on those measures that
can be recognised. So while it acknowledges that positive measures by States may
be necessary to protect the identity of a minority and the rights of its members
to enjoy and develop their culture and language and to practise their religion,
it also notes that ‘such positive measures must respect the
(non-discrimination provisions of) the Covenant both as regards the treatment
between different minorities and the treatment between the persons belonging to
them and the remaining part of the population’.

Similarly, the
Committee notes that 'none of the rights protected under Article 27 of the
Covenant may be legitimately exercised in a manner or to an extent inconsistent
with other provisions of the Covenant'. This includes, for example, Article 6
(the inherent right to life); Article 7 (torture or cruel, inhuman or degrading
treatment); and Article 23 (requirement of free and informed consent for
marriage). And in relation to Article 3 of the Covenant (equality between men
and women), the Committee has observed that:

Inequality in the enjoyment of rights by women throughout the world is deeply
embedded in tradition, history and culture, including religious attitudes...
States should ensure that traditional, historical, religious or cultural
attitudes are not used to justify violations of women's right to equality before
the law and to equal enjoyment of all Covenant rights... The rights which
persons belonging to minorities enjoy under Article 27 of the Covenant in
respect of their language, culture and religion do not authorise any State,
group or person to violate the right to the equal enjoyment by women of any
Covenant rights, including the right to equal protection of the law.

Committee has also expressed concern about domestic violence, including forced
sexual intercourse, within the context of marriage.

The provisions of
the ICCPR are also to be read consistently with the interpretation of similar
relevant rights under other conventions. So, for example, Article 27 alongside
the guarantees of non-discrimination, equality of men and women, and equality
before the law should be read consistently with related provisions of the
International Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW). The Committee on the Elimination of Discrimination
Against Women has noted that gender-based violence is a form of discrimination
within the meaning of CEDAW and that States are required to act to protect women
against violence of any kind occurring within the family, workplace or any other
area of social life and that traditional attitudes which subordinate women,
including forced marriages, will breach that Convention. There are further
examples that could be used in relation to the Convention on the Rights of the
Child and other international treaties.

The specific rights of minorities
and indigenous peoples that have been recognised under Article 27 of the ICCPR
are therefore qualified by the requirement that their enjoyment shall not
prejudice the enjoyment by all persons, including individuals from within the
group, of all universally recognised human rights and fundamental freedoms. The
commentaries of the international treaty committees, particularly the Human
Rights Committee, demonstrate that human rights standards are capable of being
applied in a manner that appropriately balances the rights of individuals within
Aboriginal communities - such as women and children - with those of the
community as a whole.

So the issue is not whether Aboriginal customary
law can be recognised in accordance with human rights standards but how to
guarantee this. And this issue of how is in my view a very difficult one. This
is where we need further debate and research - not on the issue of whether we
should provide recognition but on how we can provide appropriate recognition.
Again, I think that the submissions that HREOC made to the NT inquiry provide
extensive guidance for how to go about this process and the underlying
principles that ought to be observed by governments.

I will give you one
example. We recommended to the NT inquiry that a provision be inserted into the
Sentencing Act that states that the judiciary must determine in all matters
whether customary law is a relevant consideration, and if so, to provide
appropriate weight to customary law and to apply it consistently with human
rights. We proposed this as an alternative to a provision that states that
customary law does not apply in specifically elaborated circumstances as
generally it will be difficult to elaborate what those circumstances are with
sufficient clarity and without limiting judicial discretion. The benefit of
framing the provision in terms of positive recognition of customary law should
be clear, as should the benefits of having the judiciary consider such
recognition in all cases in order to provide greater consistency of application
of customary law. It would certainly be unfortunate if the only references to
Aboriginal customary law that emerged were excisions of where such law could not
be recognised, or forms of non-recognition.

I want to now make some
practical comments about customary law processes and then to briefly refer to
the report of the Northern Territory Law Reform Committee, which came out two
weeks ago.

At a practical level, it is important to note that there are a
range of formal processes recognising customary law currently in place across
Australia, as well as informal recognition by the judiciary in some
circumstances. Formal processes include community justice groups in Queensland,
as trialled in Hopevale, Kowanyama and Palm Island from 1993; the law and
justice committee process trialled in Lajamanu, Ali-Curung and Yuendumu in the
Northern Territory; the Ngunga Court and most recently the Ngunga Youth Court in
South Australia; Circle Sentencing in NSW; the Koori Court in Victoria and Murri
Court in Queensland.

Many of these processes have emerged out of
negotiations between Indigenous communities and government and out of a
partnership approach. Many are small trials which have been expanded when the
initial trials have proven successful. This has been an important factor, as
these trials are often more resource intensive than usual processes due to the
need for extensive consultation, education and training in the community,
customisation of programmes to the individual community needs and the consequent
higher cost. Formal schemes that are not resourced or developed properly will be
counter-productive and will potentially undermine important considerations such
as the provision of adequate human rights protection.

It is also
important to note that many of these schemes take an expansive view of what
customary law is. Customary law evolves. It changes to the circumstances of the
community exercising it, and in some cases it can be revived (if only
partially). It is a reflection of living, breathing and changing Aboriginal
cultures. Attempts to consign customary law to an earlier time will result in
the strengths of many Aboriginal communities being excluded from devising
solutions to difficult, intransigent problems. It will only lead to a
continuation of what can only be described as the utterly hopeless and
ineffective approaches that exist today.

The fact that Indigenous
involvement in sentencing processes is taking place in urban areas in the most
settled eastern sea-board states, such as through the Koori, Ngunga and Murri
Courts and circle sentencing, demonstrates the vitality and evolving nature of
customary law. The first year review of circle sentencing in NSW acknowledges
that the concept emerged from the desire of the community in Nowra to strengthen
its system of customary law. It is fundamentally a customary law response,
though classically it might not be described as such by some

Fundamentally, what these processes do is recognise the role of
the Indigenous community in devising solutions to issues being faced by the
community. For too long there has been insufficient attention to high rates of
Indigenous victims of crime. The reality that the only solution to such
victimisation that is recognised and implemented through the legal system is to
lock up the offenders has split Aboriginal communities, and often led to
under-reporting of crime, or tolerance of crimes that are in fact intolerable,
such as family violence. That is why my first recommendation to the NT inquiry
was that the government acknowledge the importance of recognising customary law
in order to develop and maintain functional, self-determining Aboriginal
communities and that such recognition would benefit all members of the community
by creating safer communities.

Despite these initiatives that I have
mentioned, however, it is clear that there is still only limited recognition of
customary law, that it is generally limited to the sentencing stage of the
process rather being recognised as playing a role through a more holistic
approach to community justice, community safety, crime prevention and healing
and restorative justice; and that it is uneven in its application across the
country. This last point is largely inevitable in a federation where criminal
law is by and large a state and territory responsibility. But it demonstrates
that we still have a long way to go.

Let me now conclude with some brief
comments on the NT Law Reform Committee’s recent report on customary law
in the Territory. The report came out two weeks ago. The Committee has described
its report as ‘confined to practical steps which can be taken
immediately’. The report correctly predicts criticism of the
Committee’s confined and limited approach as ‘unwelcome

The report contains a number of important findings.
It finds that customary law is being widely practised across the Northern
Territory. It recognises the ability of customary law to assist with law and
justice issues in communities and to assist positive outcomes with respect to
social well-being. It finds against codification of customary law, preferring to
leave interpretation and evidence of what is customary law to Indigenous
communities. It therefore seeks to focus on how to empower Indigenous
communities to implement customary law. This is within limitations of respect
for human rights and compliance with the criminal code, but with full
acknowledgement that Aboriginal communities are best placed to define their own
problems and solutions.

The Committee’s approach is general in
scope and based on incremental change which seeks to create small scale success
by building on existing Indigenous community efforts and then multiply it. These
are important findings and practical realities. Ultimately, they are let down by
the report being far too general in some parts and with some of its
recommendations being quite underwhelming. There is also disappointingly very
little reference in the report to any submissions to or consultations undertaken
by the Committee during the course of their inquiry. This would have provided
some more detailed options for consideration by the NT government.

As a
result it is no wonder that there have been some calls from within the Territory
for a national inquiry into customary law. I personally, however, do not favour
such an inquiry. We are not looking for justifications as to whether customary
law should be recognised and we are not looking for nationally applicable
approaches. It is time to provide greater support at the ground level in
communities to articulate what communities want and where they want to go, and
to then assist them to develop the skills and capacity to get there. The NT
inquiry, though extremely limited in scope, provides the tools to do this. The
efforts of the Northern Territory government, as demonstrated by the Indigenous
economic forum that it held last year and its indigenous governance conference
of last month, demonstrates that the type of change envisaged by the Law Reform
Committee is consistent with its current approach and is feasible. It is up to
communities in the Territory, to ATSIC and ATSIS, to AJAC and to the Northern
Territory government to simply get on with the job.

As I stated in my
submission to the Northern Territory inquiry:

there is currently a crisis in Indigenous communities. It is reflected in all
too familiar statistics about the over-representation of Indigenous men, women
and children in criminal justice processes and the care and protection system;
as well as in health statistics and rates of violence. Ultimately, one thing
that these statistics reflect is the breakdown of Indigenous community and
family structures. They indicate the deterioration of traditional, customary law
processes for regulating the behaviour in communities. This is due in part to
the intervention of the formal legal system through removal from country,
historical lack of recognition of traditional rights to country and
non-recognition of customary law processes as an integral component of the
operation of Aboriginal families and societies in the Northern

Customary law should be treated by the Government as
integral to attempts to develop and maintain functional, self-determining
Aboriginal communities. Customary Law is therefore more than a mitigating factor
in sentencing processes before the courts. It is about providing recognition to
Aboriginal customary processes for healing communities, resolving disputes and
restoring law and order.

Thank you.

- The Recognition of Aboriginal Customary Law and International
Law developments.

I’d like to begin by acknowledging the Gadigal People, the
traditional owners of this land.

I would like to thank the ILA, in
particular Greg Marks, for inviting me here to speak. I am honoured to deliver
this paper alongside Bill Jonas. I, like many indigenous people, admire Bill,
who has worked tirelessly for my people as the Aboriginal and Torres Strait
Islander Commissioner and the Social Justice Commissioner.

I too was
surprised by the interest in the seminar and indeed the number of calls I had
received from anthropologists and academics who had been working in the field
for decades, inquiring as to what new and innovative thinking or strategy Bill
Jonas and I were unveiling here today.

Well, it was a bit embarrassing
to keep saying we aren’t really unveiling anything, but this seminar is an
excellent opportunity to provoke some comment and exchange ideas and opinions on
this complex issue.

Perhaps the renewed interest has come on the back of
the Northern Territory and Western Australian inquiries into customary
law[1] and the media publicity of the
Jackie Pascoe controversy last year where customary Aboriginal law and human
rights were big news items. Perhaps it is not renewed interest at all but an
issue where many in the community would like to see some concrete developments.
It will be interesting to later on hear people’s reasons for being here.

Just briefly, my own interest in the recognition of customary Aboriginal
law or Aboriginal law is, apart from being Aboriginal (Wakka Wakka), related to
my work in international human rights law. For about six years I have been
working in the area of international human rights and indigenous people, as a
law student with the Foundation of Aboriginal Islander Research Action in
Brisbane, as a UN Fellow in Geneva, and now as an academic. This is a perennial
issue for Aboriginal people and an unresolved one.

In terms of
substantive work, this year has seen a lot of interest in the intersection of
Aboriginal customary law and international human rights law. Like Bill, I have
been recently overseas (about a month and a half) and both times I was
presenting papers on how Aboriginal customary law intersects with the Australian
legal system. The first workshop in Ottawa, with the World Intellectual Property
Organisation (WIPO), looked at ways to recognise indigenous traditional
knowledge including potential sui generis models. Interestingly, my brief
from WIPO was to survey Australian case studies that WIPO provides as examples
of the way in which Aboriginal customary law can be recognised or accommodated
within a common law system without the creation of a sui generis model.
The second workshop was in Spain, at the Onati Institute of the Sociology of
Law, looking at feminist or women’s perspectives of international law and
globalisation in the new millennium. Here, I delivered a paper on the
‘Globalisation of International human rights law and its impact upon
Aboriginal women’.

From intellectual property rights to the rights
of women, the potential scope of recognition of Aboriginal law is wide. It moves
beyond the popular image of customary law as it relates to criminal law and
criminal justice. (Indeed I remember at the University of Queensland Law School
typically Queensland discussions of Aboriginal customary law rarely moved beyond
‘spearing’ and ‘payback’).

What is Aboriginal

The right to manifest, practise, develop and teach custom (as
provided in the UN Draft Declaration on Indigenous Peoples Rights, for example)
is an important right. The protection of customs, traditions, language and
ceremonies is vital for all Aboriginal people in Australia. It is key to the
survival of indigenous cultures globally.

In Australia, it is as
relevant for those Aboriginal people who continue to practise Aboriginal law in
rural and remote areas as it is for those Aboriginal people whose custom and
tradition is essentially a modern evolving construct, a hybrid of experience, of
culture and of mythology that is the inevitable result of displacement, of
systemic dispossession policies of successive state and federal Australian

The content of
Aboriginal law is as diverse as Australia’s many Indigenous cultures are
diverse and vibrant expressions of Aboriginality (I acknowledge too that this
term is controversial for many Aboriginal people).

Human rights and
Aboriginal customary law

As I alluded to before, the most vivid and
most recent example of the public debate on the intersection of Aboriginal
customary law and the legal system came with the decision in Jackie Pascoe v
Peter William Hales
,[3] particularly the comments made by Justice Gallop. Equally engaging were the
comments of Justice Riley in Hales v

The debate
was quite polarised, with some human rights lawyers arguing that Aboriginal
customary law must be 100 per cent consistent with international human rights
norms and that it must evolve to reflect those norms. There were other arguments
that human rights are only a relatively recent concept when compared to
Aboriginal culture and that:

on such issues Australia's legal system may simply have to bite the bullet
and go against the norms of international human rights. Human rights are
essentially a creation of the last hundred years. These people have been
carrying out their law for thousands of

At the time, some
aspects of the media also investigated the notion of distorted customary law or bullshit law that is sometimes used in mitigation of sentencing for
criminal offences of violence and sexual abuse against women. On Radio
National’s, the Law Report, for example, one commentator argued that the
Australian legal system was an adversarial system and therefore lawyers are
entitled to use any arguments at their disposal to get the client

So, the common question
that is asked by international lawyers is: how can aspects of Aboriginal law be
reconciled with human rights norms, and, more commonly, how do you protect the
rights of women and children or reconcile group rights with the rights of the

Well, the international jurisprudence already shows that
this can be done without derogating from human rights norms and must be done
with appropriate safeguards. Indeed, it is surprising to see that when
controversies do occur like the Jackie Pascoe controversy, the public discussion
goes back to ‘Step One’: can Aboriginal law be recognised
consistently with human rights?

Yes it can.

Two’, the stage at which Australia, as a nation that has lived with
Aboriginal people for over 214 years, should be, is the debate on how you do it.
And that’s where the recommendations and submissions to the Northern
Territory inquiry, including the excellent submissions of both the HREOC
Aboriginal and Torres Strait Islander Social Justice Commissioner and the HREOC
Sex Discrimination Commissioner provide important strategies for this to be

My brief today was to look at the international human rights law
framework relating to the practice of Aboriginal customary law within States. I
think Bill has successfully addressed the reconciliation of individual and group
rights and the notion of special measures. I also agree with him that the time
for ‘Step 1’, in terms of still asking ‘can Aboriginal
customary law be recognised in accordance with human rights standards?’,
has really passed. We are now at step 2, how can we provide that recognition,
how do you guarantee that it is consistent?

Indigenous people at the
United Nations

By way of general background, the past three decades
have seen indigenous peoples make enormous inroads into the consciousness and
processes of the United Nations and indeed international law.

access to the UN, and with the assistance of the UN, indigenous peoples have
been able to highlight the injustices that have been suffered and the inequity
that has been entrenched as a result of successive waves of imperialism,
colonisation and now trade liberalisation. (Indeed my current research project
gauges the positive and negative impact of trade liberalisation upon indigenous

The principal body of human rights treaties contain important
principles relating to the treatment and rights of indigenous peoples within
states. There is a distinct and growing body of jurisprudence in international
human rights law that specifically engages with indigenous peoples. The
employment of human rights discourse in the relationship with the State has been
a powerful and effective tool.

The institutional framework of United
Nations mechanisms specifically dealing with indigenous issues includes:

  • The United Nations Working Group on Indigenous
  • Special Rapporteur on the situation of human rights and fundamental freedoms
    of indigenous people[8]
  • Permanent Forum on Indigenous
  • The Human Rights Commission Working Group on elaborating a draft Declaration
    on the Rights of Indigenous Peoples.

As I have stated all of
the principal human rights treaties elaborate standards that are relevant to

Covenant on Civil and Political Rights (ICCPR)

27[11] is the oft-quoted ICCPR
provision that protects the right of indigenous peoples to maintain culture and
language and religion where it differs from the majority group (so it’s a
protection and different to a right to be free from discrimination on the
grounds of language etc). The Human Rights Committee jurisprudence on Article 27
has frequently dealt with indigenous

It emphasises
positive measures. Such protection must be justifiable as being ‘directed
towards ensuring the survival and continued development of the cultural,
religious and social identity of the minorities
concerned’.[13] They are
rights that cannot be practised inconsistent with other ICCPR

International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD)

The Committee on the Elimination of
Racial Discrimination has called on parties to:

Ensure that indigenous communities can exercise their rights to practise
and revitalize their cultural traditions and customs and to preserve and to
practise their

Convention on the Elimination of Discrimination against Women (CEDAW) –
customary law and women’s rights

The Convention on the
Elimination of Discrimination against Women
(CEDAW) requires States Parties
to take measures to facilitate the modification of traditional cultural
practices in the realisation of women’s human rights:

States Parties shall take all appropriate measures ... to modify the
social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority of either of
the sexes or on stereotyped roles for men and

The United
Nations Development Fund for Women (UNIFEM) has emphasised the need to
‘...replace harmful customs with new practices that respond to current

Advocates of gender equity must recognize and challenge
the social acceptance and perpetuation of harmful traditional practices in all
cultures. Historically, religion and culture have proven extraordinarily
adaptive; most belief systems have been revised over time to accommodate new
understandings and new values that emerge in human society. Numerous cultures
offer examples of traditions, including customs harmful to women, that have
changed or died out. For generations, women (and some men) in Sudan endured
mutilation to acquire face marks, a traditional sign of beauty as well as an
indicator of tribal affiliation. In recent years, this tradition has rapidly
disappeared. The binding of women's feet in China is another example of a nearly
universal custom that is no longer

In considering
the relationship between protecting minority rights and the rights of women to
equality, the Human Rights Committee has confirmed the importance of upholding
women's rights. The Human Rights Committee has also noted that:

Inequality in the enjoyment of rights by women throughout the world is deeply
embedded in tradition, history and culture, including religious attitudes...
States should ensure that traditional, historical, religious or cultural
attitudes are not used to justify violations of women's right to equality before
the law and to equal enjoyment of all Covenant


The rights which persons belonging to minorities enjoy under Article 27 of
the Covenant in respect of their language, culture and religion do not authorise
any State, group or person to violate the right to the equal enjoyment by women
of any Covenant rights, including the right to equal protection of the

According to the HREOC Sex Discrimination Commissioner, international law
hasn’t adequately addressed customary law and international human

While it is clear that there are cases internationally where women's
individual human rights and minority rights are in conflict, international human
rights law has yet to consider this issue in relation to Aboriginal Customary
Law. Aboriginal Customary Law may be as diverse as Aboriginal communities and
there can be disagreement as to what constitutes Aboriginal Customary Law. In
these circumstances, a contextual approach to resolving apparent conflict that
acknowledges the individual circumstances involved is more likely to resolve

on the Rights of the Child (CROC)

Article 30 of this widely ratified
convention provides that:

In those States in which ethnic, religious or linguistic minorities or
persons of indigenous origin exist, a child belonging to such a minority or who
is indigenous shall not be denied the right, in community with other members of
his or her group, to enjoy his or her own culture, to profess and practise his
or her own religion, or to use his or her own language.

Labour Organisation 169

This convention provides in respect of
indigenous peoples and customary law as follows:

Article 8:

[Indigenous peoples] shall have the right to retain their own customs and
institutions, where these are not incompatible with fundamental rights defined
by the national legal system and with internationally recognized human

Article 9(1) provides that, subject to the same limitations:

the methods customarily practised by the peoples concerned for dealing with
offences committed by their members shall be respected.

UN Draft
Declaration on the Rights of Indigenous Peoples

An open-ended
inter-sessional Working Group on the Draft Declaration was established in 1996.
For nine sessions this Working Group of the Commission on Human Rights struggled
to establish consensus on the text of an international declaration elaborating
the rights of Indigenous
Peoples.[20] The text of the Draft
Declaration originated from within the standard setting mandate of the United
Nations Working Group on Indigenous Peoples

It is an
innovative text enumerating controversial rights such as the right to
self-determination, right to land and resources (including restitution and
compensation) and collective rights. The text was drafted in consultation with
indigenous peoples who had participated in its development through the Working
Group on Indigenous Populations since

Australian law
and practice

There have been examples of the Australian common law
accommodating aspects of customary law particularly in the field of intellectual
property. While the situation regarding indigenous intellectual property and
protection of traditional knowledge is far from resolved, there are examples of
the courts finding traditional custodians as having an equitable interest in
artwork where there had been a copyright infringement which entitled the
traditional custodians to equitable relief.

In the Bulun Bulun case[23] the Federal
Court found that traditional custodians in certain circumstances have a
fiduciary obligation to protect ritual knowledge in artistic work from being
exploited. The court found that:

the Aboriginal peoples did not cease to observe their sui generis system of rights and obligations upon the acquisition of sovereignty of
Australia by the crown...[T]he question for the court is whether those
Aboriginal laws can create binding obligations on persons outside the relevant
Aboriginal community.[24]

determining how customary law intersects with the common law of Australia the
court went onto say that:

The conclusion that in all the circumstances Mr Bulun Bulun owes fiduciary
obligations to the Ganalbingu people does not treat the law and custom of the
Ganalbingu people as part of the Australian legal system. Rather it treats the
law and custom of the Ganalbingu people as part of the factual matrix which
characterise the relationship as one of mutual trust and

It is interesting to note that the Australian government has used these cases
and many others to demonstrate to the TRIPS (Trade-related Aspects of
Intellectual Property Rights) Council how the existing intellectual property
systems can provide protection for traditional knowledge. In 2000-2001 WIPO
undertook a major investigation of Australian intellectual property laws and how
existing systems can be used..  According
to the Australian government, in its submission to the TRIPS Council, before
there can be a discussion on a sui generis system, full account must be
made of the progress of the existing legal framework and its evolution toward
the protection of traditional knowledge. It is the author’s contention
that those cases are simply examples of when matters have reached the court and
are an exception to the rule.   While examples of obiter dicta have assisted indigenous people in advocacy for reform, the scope for judicial
creativity is very limited and it is the role of government to legislate to
protect these unique rights.  It is the nature of Australia’s
representative government and separation of powers that the evolution of such
reform won’t come from the courts The ‘judicial creativity’
Australia refers to in the report must become legislative creativity.


The Australian legal system has recognised the
existence of Aboriginal customary law in respect to our property rights, or
native title. This was made clear by Australian High Court in Mabo (No 2) which held that the nature and content of native title will be shaped by
‘the laws and customs’ of the traditional landholders. This
fundamental recognition of customary law was directly influenced by the
developments of international human rights law, in particular the international
prohibition of racial discrimination as exemplified by the International
Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
which Australia signed in 1966. The High Court’s rejection of Australia as terra nullius, empty of or without peoples governed by a system of set of
laws, was consistent also with the decision of the International Court of
Justice in the Western Sahara case of

The acquisition of
Australia by way of ‘peaceful settlement’ as opposed to cession (by
way of treaty agreement) or conquest, resulted in the domestic law completely
denying Aboriginal customary law and jurisdiction. Although there was some early
attempt by the New South Wales judiciary to draw upon United States case law to
recognise that Aboriginal people were a sovereign people ‘entitled to
govern themselves according to their own laws and customs’, this
jurisprudence was not accepted by the domestic legal
system.[27] In the United States,
the limited recognition of Indigenous sovereignty has meant also recognition of
customary law, as illustrated by the Navajo Tribal Court system, which
incorporates a ‘Peacemaker’ system drawing on customary law.

The growing body of law relating to Indigenous peoples’
international human rights can provide the necessary legal foundation in
Australia for the recognition of customary
law.[28] In addition to the ICERD,
as discussed above Australia is also a binding signatory to the ICCPR, where
Article 27, as noted above, requires States to respect the culture of Indigenous
peoples. Indigenous peoples rights to self determination, at least of an
‘internal’ nature, has also been recognised by the Human Rights
Committee. The manner in which these rights can be domestically implemented can
clearly include the recognition of customary law.

[1] See Law Reform Commission of
Western Australia, Aboriginal Customary Laws – Discussion Paper, 2005; Northern Territory Law Reform Commission, Towards Mutual Benefit, Report on Inquiry into Aboriginal Customary Law

[2]For example the impact
of extensive control policies: Aboriginal Protection and Restriction of the Sale
of Opium Act 1897 (Qd); Aboriginal Protections Act 1909 (NSW); the Northern
Territory Aboriginals Act 1910 (SA); the Aboriginals Ordinance 1911 (NT); the
Aboriginals Ordinance 1918 (NT); the Welfare Ordinance 1953 (NT); the Aboriginal
and Torres Strait Islanders Affairs Act 1965 (Qd); the Aborigines Act 1911 (SA);
the Aborigines Act 1934 (SA); the Aboriginal Affairs Act 1962 (SA); the
Aborigines Protection Act 1886 (WA); the Aborigines Act 1905 (WA); the Native
Welfare Act 1963 (WA).
[3] Northern Territory Supreme Court 8 October 2002,….
[4] [2003] NTCA 9.
[5] Quoted in David
Fickling, ‘Bridging whitefella law and Aboriginal clan justice, at
[6] The Law Report - see
[7] ECOSOC resolution 1982/34.
[8] Commission on Human Rights resolution
[9] ECOSOC resolution
[10] Including the
Universal Declaration on Human Rights; International Covenant on Civil and
Political Rights; International Covenant on Economic Social and Cultural Rights;
International Convention on the Rights of the Child; International Convention on
the Elimination of All Forms of Discrimination against Women; International
Convention on the Elimination of All Forms of Racial Discrimination;
International Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment; UN Draft Declaration on the Rights Indigenous Peoples;
and ILO
Convention concerning Indigenous and Tribal Peoples in Independent Countries (No.169).
[11] ICCPR, Article 27: In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of
their group, to enjoy their
own culture, to profess and practise their own religion, or to use their own

[12] Human Rights
Committee General Comment 23 para 7 in Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies UN Doc
HRI/GEN/1/Rev5 2001:
With regard to the exercise of the cultural rights
protected under article 27, the Committee observes that culture manifests itself
in many forms, including a particular way of life associated with the use of
land resources, especially in the case of indigenous peoples. ... The enjoyment
of those rights may require positive legal measures of protection and measures
to ensure the effective participation of members of minority communities in
decisions which affect them.

[13]Human Rights Committee,
General Comment 23 - Article 27, para 9.
[14] General Recommendation
XXIII on the Rights of Indigenous Peoples para 4(e), in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies UN
Doc HRI/GEN/1/Rev5 2001.
[15] Convention on the Elimination of All Forms of Discrimination Against Women
Article 5(a).
[16] United
National Development Fund for Women (UNIFEM) "Women, Culture and Traditional
Practices" CEDAW Advocacy Kit gopher://
United National Development Fund for Women (UNIFEM) "Women, Culture and
Traditional Practices" CEDAW Advocacy Kit gopher://
[17] Human Rights Committee General Comment 28 para 5 in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies UN
Doc HRI/GEN/1/Rev5 2001.
[18] Human Rights
Committee General Comment 28 para 32 in Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies UN Doc
HRI/GEN/1/Rev5 2001.
[20] S C Res 1994/45 Draft United Nations Declaration on the Rights of Indigenous
[21] ECOSOC Res
[22]For survey of its
developments see: Sarah Pritchard, ‘Working Group on Indigenous
Populations: mandate, standard-setting activities and future perspectives’
in Sarah Pritchard (ed) Indigenous Peoples, the United Nations and Human Rights
(1998) 40
[23] John Bulun
Bulun v R & T Textiles Pty Ltd
(1998) 41 IPR
[24] Ibid.
[25] Ibid.
[26] [1975] ICJR, at
[27] See also Coe v Commonwealth (No 2) (1993) 118 ALR 193; Walker v
New South Wales
(1994)182 CLR
[28] For example Articles 8
and 9(1) of ILO Convention 169, as above.