The British view of Aboriginal and Torres Strait Islander peoples was that they had no real social organisation, no government, no laws, and no rights over the land. When Captain Cook landed at Botany Bay on 17 April 1770, he noted that he 'never saw one inch of cultivated land in the whole colony'. This reinforced the British view that people were not in possession of the land, and so the land was 'terra nullius' or 'land belonging to no one'. By European law, if the land was not being used, then those who found it first could claim it. Of course, we now know that Indigenous people did have a very close and deep-rooted relationship with the land and they did have laws to rule their behaviour.
The Dreaming and Indigenous law
The Dreaming provided Indigenous people with laws to rule their behaviour. The ancestral beings decided the rights, responsibilities, and behaviours of all things in the land. These laws typically covered what foods could be eaten and how the food should be shared, the punishments if laws were broken, the rules for family, marriage and social organisation, the rules for looking after land and the sacred sites, and the rules for ceremonies and rituals.
Learning about the law
Indigenous peoples were taught from early childhood what the law allowed and what it did not allow. They were taught these things through stories, music, art, dance and other ceremonies. Indigenous children grew up being familiar with their own laws and with their daily rights and obligations. They knew both the spiritual dangers and what punishments were given to people who broke the law. They witnessed the process of punishment and how cases were argued and decided. Refer Image 1
The most important thing for Indigenous children to learn was the appropriate way to behave towards the land and other people within the family. Stories were told that taught children how to behave. One story from the Goulburn Islands, off the coast of Arnhem Land, tells of a greedy boy. He made so much noise that the Dreaming being, the Rainbow Serpent heard him and swallowed the boy and his friends and family.
The process of law
Indigenous people living in Australia prior to white settlement did not have governments or law courts to decide disputes and punishments. Rather, the process of law was one of negotiation that involved most members of the community.
Particular arguments that could not be settled informally could be settled by a group of people known as elders. Elders were usually men who had great experience and knowledge of sacred matters and were viewed as teachers rather than judges. Refer Image 2
Offences and punishments
Theft, adultery, unauthorised physical assault, and insult and neglect of family and clan obligations were offences that were considered unlawful. Punishments could range from having to face a squad of spearmen with only a shield as protection, to making compensation. There was no such thing as a jail in Indigenous life. Punishments (either actual or ceremonial) were given out and normal life was resumed as soon as possible.
Sometimes there were disputes between various Indigenous groups. These disputes were settled by negotiation, ritual punishment or formal battles. Settling disputes under Indigenous law was part of the purpose of the great gatherings of Indigenous groups that took place occasionally, particularly when there was plenty of food for many people. Groups would hold major ceremonies and they would trade materials and objects, teach each other new songs and dances along with settling disputes and making marriage arrangements. Refer Image 3
Arrival of the British
When the British did begin to settle in Australia, from 1788, there was much conflict with the Indigenous peoples. One major source of conflict was the differences between Indigenous law and British law. These differences still exist today, though efforts are being made to recognise traditional Indigenous law in the Australian legal system. Future chapters will look at more sources of conflict and the effects of this conflict.