Aboriginal Australian Legal Systems

A Discussion of a Legal System Very Different from Ours

Amy Castello

I. Introduction

The term aboriginal is defined as “of or relating to the people and things that have been in a region from the earliest time.”[1] A more apt description couldn’t be found to describe the native people of Australia, who have been on the Australian continent for 50,000 to 65,000 years.[2] Numbers vary, but anthropologists estimate that there were as many as 750,000 Aboriginal people in Australia and as many as 500 tribes before European colonization in 1788.[3] At that time, the Aboriginal Australians spoke several hundred different languages, each with its own selection of dialects.[4] Despite the numerous tribes and hundreds of languages, the Native Australians were a mostly harmonious people who would often travel hundreds of miles to meet with kinfolk to exchange stories, news, and participate in ceremonies.[5]

The Aborigines lived a “semi-nomadic” life as hunters and gatherers.[6] They were careful to sustain the pristine Australian environment that existed pre-colonization, so hunting and gathering was never done to excess. [7] Aborigines used very part of the plant or animal for food, clothing, or tools.[8] Because Aboriginal Australians did not live a fully nomadic lifestyle, traditional land boundaries were recognized and passed down through oral tradition.

The presence of European settlers in 1788 changed the Aboriginal people profoundly. “Colonisation decimated the Aboriginal population, fragmented the Indigenous people and their cultures and challenged their identity and survival.”[9] European settlers mistakenly assumed the lack of fences and boundaries meant the Aborigines did not claim ownership of their life-giving land.[10] And it is only in the past few decades that Aborigines have had legal success in regaining their land.[11] Much of the Aboriginal culture was lost or suppressed due to European colonization, but Aboriginal society has survived and persists in contemporary Australian culture. This paper will focus on the source of traditional Aboriginal customary law and several of the more universal practices within traditional Aboriginal society. Specifically, this paper will look at certain institutions in Aboriginal culture that can be analogized to property law, marriage law, tort law, and the distinction between civil and criminal law. While the comparisons to western concepts of law are not perfect, they provide a point of reference to help understand this fascinating legal system that is very different from our own.

II. The Dreaming as Provider of Religion and Law

i. The Dreaming Defined

The Dreaming is a complex concept that forms the foundation of knowledge for all Aboriginal culture. It describes the continuous interaction between the physical and spiritual worlds.[12] The Dreaming is best described as the creative epoch that began when the Ancestral Beings formed the earth and continues on each day into the future.[13] The Australian landscape is attributed to the activities of the Ancestral Beings who traveled through the environment, taking the form of both humans and animals.[14] The Ancestral Beings left their marks upon the landscape as they hunted, danced, sang, gathered foods, traveled, and died.[15] For example, a mountain ridge is attributed to a kangaroo-man sitting upright to get a better view of the land and a winding river is the curving path of a snake.[16]

But the stories of the Dreaming are not simply an explanation of the natural features of Australia. These stories are a form of cultural transmission.[17]

Stories recounting the epic Dreamtime adventures of the Ancestral Beings are told not as bedtime stories for children but as mnemonic devices to teach the listeners an absolutely essential working knowledge of their own immediate physical environment, how to travel safely through it and how to relate to the other living creatures and plants with whom they share it and to whom they bear a special responsibility and familial kinship.[18]

The Dreaming stories are passed on through song, dance, storytelling, and painting.[19] Even though Aboriginal tribes are divided by numerous languages, they all have terms specific to this doctrinal concept.[20] Ungud, Aldjerinya, Tjukurrpa, Bugari are all examples of the various terms used by Aboriginal tribes to refer to the Dreaming.[21]

ii. Dreaming as Law

It is important to note that while the term “Dreaming” is the most common translation of this creative epoch, it is far from a perfect translation. In fact, many tribes may also refer to this continuum of creation as “The Law” because the Spiritual Ancestors established a “code of life” while they traveled through the land.[22] The law handed down through the Dreaming can be compared to customary law, providing intrinsic rules of conduct, vital practices, and beliefs.[23] “[It] covers rules for living and is backed by religious sanctions and it also prescribes daily behavior. Through the Dreaming, the law is prescribed for the land and its occupants.”[24]

Traditional Aboriginal law distinguished between private and public law, as opposed to civil and criminal law. [25] However, comparisons can be made between private law and civil law, and public law and criminal law.[26] A public wrong included topics such as incest and sacrilege, where as private law deals with wounding and adultery.[27] However, traditional law was not limited to these topics - it deals with everything from murder and sorcery to insult and swearing.[28] “The Law covered ritual, economic, residential and kinship rules and conventions. It also covered the care of sacred objects, the division of labour by gender, the avoidance of mother-in-laws and even the rising of the sun.”[29] The scope is expansive because there is no attempt to distinguish social regulations from religious mandates.[30] This likely shows that Aborigines acknowledged an extremely important role for religion and spirituality in their societal well being.

The Pila Nguru tribe provides a vivid example of how the Dreaming functions as law. The Pila Nguru people of Western Australia typically translate Tjukurrpa as “The Law” and say they are in “business” when conducting or preparing for ceremonies that observe the Tjukurrpa[31]. In this sense, the practice of Aboriginal law and the practice of Western law share a commonality – the notion of business. Business imparts a sense of seriousness, devotion, work ethic, and regulations, which are common to both practices of law.[32] However, this is largely where the similarities between the Pila Niguru and western notions of law end. The western practice of law is strongly motivated by monetary gain, whereas the Aboriginal practice of law is largely for religious or spiritual gain.

The contrasting motives between Aboriginal law and western law can be better understood by looking at the differing sources of the law. In the United States, law is a man-made convention – elected representatives write laws that can then be legislated into being by acts of Congress. In traditional Aboriginal law, the Ancestral beings laid down the laws by example of their own actions during the creation period.[33] Given that there is a divine and finite source of law, the Aboriginal law is not susceptible to various interpretations or corruptions like its Western counterparts.[34] The Dreaming stories teach through example, portraying Ancestral Beings who violate or abide by the rules. By teaching through example, there is less room for misinterpretation - either the kangaroo-man did or did not do something and it was either good or bad. This contrasts sharply with codified statutes that often leave lawyers and judges to determine construction by interpreting terms and defining the scope of the law.

III. Social Groupings as Related to Property Law

This section will provide a brief overview of the basic social groupings that provide structure in Aboriginal society. It is necessary to have this basic knowledge of Aboriginal social organization to better understand the rules that governed land use and maintenance. Because responsible utilization of the land for hunting and gathering was paramount to survival, it is easy to understand why many social groupings relate to use of the land in some way. All Native Australians had various, complex, and overlapping systems of organization that determined their roles in land use. The terms and rules defining these social groups varied from tribe to tribe, but most contained a variation of the following groupings.

i. Tribe

The tribe was the first, and arguably simplest, layer of social organization. The tribe was easily the largest social grouping, containing anywhere between 500 and 1,000 members.[35] It was related to a “traditional land” region defined by geographic features such as mountains and rivers. Elders passed down the knowledge of these boundaries through oral transmission, dance and art.[36] However, the tribe was not strictly fixed to a specific plot of land given the Aborigines nomadic nature.[37] Because the tribe was not easily defined by geographic boundaries, the tribal unit was better defined by language.[38] As a result, the combination of language, custom, and law united the tribe .[39] Of the estimated 500 tribes that existed pre-colonization, about 400 tribes are still in existence.[40] It is also important to recognize that tribes are not rigid social groupings. [41] Tribes were linked by marriage, ceremonial interaction, and sharing of natural resources, which required people to freely move between tribes.[42]

ii. Clan

The clan was the next largest social structure, which was composed of several hundred people.[43] Each clan was defined by its responsibility to provide for the spiritual well being of a particular animal, or totem.[44] “A clan is tied to species whose proto-typical powers were locally active during The Dreaming; features of the landscape are identified as their work.”[45] It was the clan’s duty to care for the land that their totem animal inhabited.[46] Through ritual and ceremony, the clan preserved the land that was a sanctuary for the spirit of their totem species.[47] The duties of each clan were well known throughout the tribes. For example, if the ringtail possum population started to decline in a certain area, tribal representatives of that area would travel hundreds of miles to ask the ringtail possum clan to perform “increase ceremonies” in the possum’s sanctuary lands.[48]

The very existence of the clan structure notes that the Western notions of land use and the ownership of real property are not relevant in Aboriginal society. The clan’s right to land was not based on legal principles, but on religious principles. The land was to be worshipped, praised, and maintained. This spiritual reverence of the land made sense given that Aborigines were hunters and gatherers before colonization.[49] Ceremonies were conducted to honor and strengthen the clan’s totem, but at a basic level, these ceremonies can be seen as an attempt to control an otherwise harsh environment. Australia boasts extreme climates (temperatures that can range from over 100 degrees F to below zero in a single day) and is characterized by its long hot summers.[50] The desire to gain some sense of control and combat complete vulnerability to the environment can help explain why the conservation-based clan unit exists. As one anthropologist notes, “[it] would be as correct to speak of the land possessing men as of men possessing the land.”[51]

iii. Bands

Bands, or hordes, were the final and smallest physical grouping within the tribe. The bands were comprised of several families and contain roughly 10 to 20 people.[52] Their function was in distinct contrast with the clan.[53] Instead of preserving the spiritual and physical integrity of the land, the band harvested food and resources from the land.[54] Because all members of the tribe were also members of the larger clan structure, the tribes were simply harvesting the fruits of their spiritual labor. It is important to note that the band is not a term recognized by the Aborigines. It is a term used by outsiders to conveniently categorize the smaller hunting and gathering groups that Aborigines functioned in on a daily basis[55]. Aborigines were more likely to self-identify with their clan or another totemic group.[56]

Membership in the clan also imparted the importance of sustainable harvesting. The band had to constantly balance the need to harvest food with the need to respect the spiritual sanctuary. This balance was necessary for the survival of Aborigines as a semi-nomadic group of hunters and gatherers. Aborigine Tom Dystra best explained this balance: “We cultivated our land, but in a way different from the white man. We endeavoured to live with the land; they seemed to live off it. I was taught to preserve, never to destroy.”[57]

IV. Moieties and Marriage Law

i. Moieties

The categorization based on moiety is distinct from the prior groupings discussed because it organizes people into marriage and ritual-based affiliations.[58] Moieties were an additional layer of social organization that co-existed with the tribal, clan, and horde groupings. Depending on the society, moiety was determined by either the mother or father.[59] A moiety derived from the father is called a “patrimoeity” and a moiety derived from the mother is a “matrimoiety”.[60] Traditional aboriginal societies organized themselves by divisions of two, four, or eight.[61] A division of two is a moiety, a division of four is a section (sometimes a semi-moiety), and a division of eight is a subsection.[62] Sections may also be referred to as “skin groups”, perhaps indicative of the basis for organization – direct familial relation, someone of your own skin. [63] Like a clan, the moiety also provided a person with an animal identity, or totem. The totemic animals and plants used for moieties were typically from two contrasting classes (e.g. a black cockatoo and a white cockatoo).[64]

ii. Marriage Law

The moiety was an integral part of marriage rules. In a society that was divided into two moieties, the man had to choose his wife from the moiety that he did not belong to.[65] Moieties are thus considered exogamous.[66] In the section-based system, a man was forbidden from marrying a woman from his own section, his mother’s section, and his father’s section.[67] While these examples are a vast over-simplification of the complex marriage rules and descent rules, they seem to reveal a common concern of incest. “In some parts of Australia certain marriages within the class, though not regarded as ideal, are viewed with an attitude that ranges from toleration to a disapprobation that stops short of actual prohibition.”[68] Such “irregular” marriages could result in the man submitting to a temporary onslaught of spears and boomerangs in order to gain acceptance of his marriage.[69]

These strict marriage rules may have protected against several potent dangers to the Aboriginal societies. First, these laws guarded against genetic diseases that are a result of incestuous relationships. If the rules prevent a man from marrying anyone who may be related to him, his mother, or his father, he is effectively prevented from having sexual relations with a close relative. Second, these rules may have functioned to prevent competition among men for their prospective wives. Such strict rules constrain a man’s options so that he is limited to a small pool of eligible females. The knowledge that he could not marry outside his section may have lead to more harmonious interactions among the men of different sections. Once the time came for a man to choose a wife, he already had a keen understanding of who was the best choice for him, given a woman’s moiety in comparison with his.

In addition to the exogamous marriage describe above, tribes were known to also partake in two other forms of marriage: contract marriages and exchange marriages.[70] Contract marriages, also referred to as “promise marriages”, occur when a girl’s family bestows her as a wife to another man.[71] Often, the girl would still be in her infancy when this arrangement was made.[72] Her betrothed was typically an older man, but she could also be promised to a younger person.[73] The contract is often maintained by providing gifts and food to the family until the girl is ready to be married.[74] Somewhat similar in theory, an exchange marriage refers to the bestowal of a spouse in exchange for an item of value. The spouse being exchanged was typically a woman. Like the promise marriage, these marriage arrangements also took place during the girl’s infancy. A typical exchange marriage might be the transfer of valuable meat for the right to marry an infant girl when she comes of age.[75]

The institution of marriage in the traditional Aboriginal society was not seen as a simple union of man and woman, but was an act that had ramifications for the couple’s kin groups.[76] The marriage created alliances, and further extended the duties and obligations demanded by kinship law.[77] It also functioned as a means of spiritual preservation, ensuring that ritual and ceremony necessary to preserve the land will continue.[78] And because bestowing a wife to another man often resulted in gifts of food and valuable items, a marriage could be a valuable economic resource that provided stability and ensured survival to a young woman’s family. With so much riding on a successful marriage, it is easy to see why it is such a highly regulated activity within the Aboriginal society.

V. Kinship & Reciprocity as Related to Tort Law

i. Kinship

The kinship system was an undeniable cornerstone of the traditional Aboriginal society, providing the obligations, rights and respects that are owed to one’s relations.[79] As with all forms of regulation and structure, kinship categories were established during the Dreaming.[80] It is a system of classification that determines the rights and duties a person owes to another.[81] “[T]he social universe was indeed a universe of relatives…In order to know how to behave towards each other – and even to just have a social relationship- two people had to know or discover their kin relationship.”[82]

While kinship rules differed among the numerous Aboriginal societies, there were several common features that run throughout. Aborigines recognized the “equivalence of same sex siblings”.[83] This is expressed by a child calling his mother’s sister “mother” or his father’s brother “father” and referring to his father’s brother’s children as his siblings instead of cousins.[84] There are roughly twenty different relationship terms utilized in most regions – grandmother, grandfather, mother, father, older sister, older brother, etc.[85] This classification system was applied to all Aborigines a person met throughout his or her life.[86] Properly classifying an individual told an Aborigine how to appropriately interact with this new person.

Once the relationship had been classified according to kinship, the relationship was governed by appropriate behavioral patterns.[87] Some common behavioral patterns were avoidance, restraint, moderation, lack of restraint, and joking.[88] The avoidance pattern is seen most viscerally in the relationship between a man and his mother-in-law.[89] If a son and his mother-in-law wanted to communicate, they had to use an intermediary.[90] Further, they should do so only from a distance to prevent any chance of contact –a fly going from one to the other may cause inappropriate, though indirect, physical interaction.[91] In sharp contrast, the joking pattern was governed by the most informal rules of behavior and would be common between grandparents and grandchildren. [92]

The rules that governed kinship appeared to function as rules of preservation of peace and health. They were certainly a means of limiting cantankerous relationships, such as the mother-in-law avoidance relationship, that could result in tension and group discord. In particular, this pattern of avoidance helped prevent a woman and her mother from competing for the same man.[93] This made most sense when the woman’s mother was closer in age to the husband than the wife (a situation that was not atypical in Aboriginal society).[94] They encouraged beneficial relationships, like the joking pattern that existed between grandparents and grandchildren. The joking pattern created an unhindered line of communication for the grandparents to pass down wisdom, knowledge, and life experience to their grandchildren. These rules also reflected a similar concern with incest, as was seen in the marriage rules. A brother and sister behavioral pattern grew increasingly more restrained as the siblings grew into maturity.[95] “The kinship pattern reflects a keen awareness of the psychological problems associated with incestuous attractions: not only the physical expression of incest but its psychological forms can disturb the sexual energies on which both biological and spiritual creation depend.”[96]

ii. Reciprocity

Reciprocity refers to the system of sharing and gift bestowal defined by the individual’s kin relationships. Reciprocity is best understood in the context of balance. Every gift or service bestowed upon an individual had to be repaid to maintain the balance that creates harmonious communal life.[97] Such a system encouraged, and even mandated, interdependence within the social group. From an early age, children were taught to share their food with kin, creating the expectation of generosity within the kinship structure.[98] While generosity was often demanded of a kin relation, community standards defined what is an appropriate demand and response.[99]

One economist defined the relationship as a “system of strategic interaction through which individuals evaluate and respond to requests for assistance from other Aboriginal people. This social interaction is guided by what might be described as a calculus of reciprocity.”[100] It is interesting to note that the value of goods exchanged was not nearly as important as the ritualism and human interaction required for the exchange.[101] A person’s status was benefited by his participation in these reciprocal exchanges, not by the tangible goods he gained from the exchange.[102]

iii. Kinship as Tort Law

The kinship network and its resulting system of reciprocity are comparable to the common law notion of tort law. The rigid system of classification that dictates the rights and duties owed to kin can be equated to the notion of duty of care under a negligence cause of action. At common law, satisfying the elements of duty, breach, causation, and damages proves negligence. A person is negligent if they violate a specific duty of care, which is often defined by the tortfeasor’s relationship to the victim. For example, a duty of care is owed in the relationship between a common carrier and a passenger, a custodian and ward, innkeeper and guest, etc. Similarly, the traditional Aboriginal system defined numerous standards of care that a person owed to others in the community. However, in the Aboriginal context, the relationships were defined solely by kinship. Greater duties were owed to consanguineous relations, but duties nevertheless extended out to all members of the kin group. For example, a duty to support your kin required you to provide food and share resources for your extended family.[103] It may also require you to protect certain kin members and work to prevent any harm from befalling them.[104]

But the general notion of duty of care is where most of the similarities end. Under traditional Aboriginal law, an individual may have been liable for the harm that a son or daughter suffered simply because of the relationship to him or her.[105] Common law notions of individual fault are “displaced at customary law by a broader concept of moral responsibility. It appears that, at customary law, liability for a negligent act or omission may lie not only with the wrongdoer but also with those who are in a special relationship with the injured party, often irrespective of cause or reasonable foreseeability of injury.”[106]

Another essential difference is the concept of damages. The Western concept of civil damages is solely monetary. Generally, the accused tortfeasor must pay sufficient sums of money to restore the victim to his state before the harm occurred. In traditional Australian society, a person was punished for failing to uphold a duty of care by shaming, ridicule, ostracism, battery, or wounding.[107] Continuing with the civil law comparison, these customary law punishments are enforced privately, by the violator’s kin, without invoking the assistance or authority of the tribal elders.[108]

While the concepts of compensation and punishment are in sharp contrast to each other, the Law Reform Commission of Western Australia argues that these distinct responses may actually be aimed at achieving the same goal. The Commission argues, “ that responses for tortious wrongs under Aboriginal customary law are compensatory in the sense that their primary purpose is to restore harmony to a family or community rather than exact ‘revenge’ for the harm suffered.”[109] In a society that functioned under a rule of reciprocity and did not value the accumulation of wealth, monetary compensation would clearly not have provided the necessary balance. Their system of private punishment was calibrated to achieve a similar goal to common law torts, albeit by very different means.

VI. Conflict Resolution as Related to Civil & Criminal Law

i. General Dispute Resolution

Conflict resolution in the traditional Aboriginal legal system did not take place in courtrooms under the guidance of legal practitioners or judges.[110] Disputes were resolved either privately by the family unit or publicly by a group of Elders. This distinction has been often compared to the distinction between civil and criminal law.[111] Offenses were categorized as either a violation of sacred law or an offense against a person and property.[112] Violations of sacred law, such as incest and sacrilege, were considered public matters.[113] A council of elders would typically be responsible for determining the appropriate punishment (which could be as severe as death) for a public violation.[114] It is not hard to draw comparisons between customary public offenses and criminal law. Both are dealt with in the public sphere, both deal with crimes that are detrimental to society as a whole, and both are subject to corporal punishment.

In contrast, offenses against the person or property were considered private, and were dealt with according to kinship rules (as was discussed in the previous section). Close kin members would dole out the appropriate punishment or chastisement when an offense was considered private.[115] Private offenses included, but are not limited to adultery, violence, and marrying another’s betrothed. Similar to civil law, the action was brought privately and dealt with matters that only implicated the parties involved. Further, private offenses could be made public, presumably according to the severity and nature of the offense. This makes the distinction between private and public offenses very hazy. In addition, the two notions often overlap, making it an imperfect comparison to criminal and civil law. For this reason it is important to note that the comparison between customary Aboriginal law and contemporary western law is only meant to be a helpful point of reference.

ii. Settlement by Ordeal

In addition to having kin or elders intervene to resolve a conflict, there are several other interesting and unique methods of conflict resolution employed by the Native Australians. Settlement by ordeal, or magarada, is highly ritualized course of action that is intended to reduce the injured party’s anger and provide restrained retaliation against the offender.[116] First, the injured party and his men must allow their anger to cool.[117] Then, members of the aggrieved party and members of the offending party participate in totemic dance while facing each other.[118] Following this dance, the accused group, along with a representative from the aggrieved party, submit themselves to an onslaught of spears which have the blades removed.[119] The men can dodge the onslaught, but cannot return any of the spears.[120] This is meant to defuse the aggrieved party’s anger because the accused man and his group must next submit to an onslaught of fully armed spears.[121] The accused man’s ordeal is ended when he is speared through the thigh or otherwise wounded.[122] Elders from both sides are present to prevent the retaliation from getting out of control. [123] If there was no injury, the case was not considered settled and further retaliation would occur. [124]

iv. Feud

Another method of conflict resolution is the feud. In the traditional Aboriginal context, a feud is armed conflict aimed at resolving a conflict between families or kin groups. [125] The feud can implicate the entire tribe or clan, resulting in warfare with another tribe or clan.[126] Pinya, atninga, and wanmala are all terms from various tribes that refer to this practice, suggesting its pervasive use in Aboriginal culture.[127] These feuds generally took the form of “armed expeditions, socially sanctioned, which set out for a definite purpose, such as to avenge the death of a fellow tribesman or clansman or to punish an offender.”[128] Vengeance was commonly sought for stolen or seduced wives and deaths attributed to sorcery.[129] The members of the expedition would often paint their bodies and perform ceremonial dance in preparation for the attack.[130] The avenging party then entered into the opponent’s camp and claimed its victim.[131] Death or punishment was administered and the affair was ended.[132]

VII. Conclusion

The Traditional Aboriginal society developed rules and methods of conflict resolution that responded to their specific needs. Although their legal system holds little resemblance to our own, there are some undeniable similarities. Common themes such as property use and maintenance, marriage, negligence, and conflict resolution can be seen in both common law notions of law and traditional Aboriginal customary law. The similarities are remarkable given the two very distinct times and environments that gave birth to these disparate systems. If nothing else, it can serve as a reminder of our common humanity and the common desire for order that defines legal systems everywhere.

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[1] Aboriginal Definition, Merriam-Webster.com, http://www.merriam-webster.com/dictionary/aboriginal.

[2] The Dreaming, Australia.gov.au, http://australia.gov.au/about-australia/australian-story/dreaming (last visited Oct.17, 2013).

[3] Ronald M. Berndt & Catherine H. Berndt, The World of the First Australians 28 (1999); Introduction to Indigenous Australia, Australian Museum, http://australianmuseum.net.au/Indigenous-Australia-Introduction (last visited Oct. 17, 2013).

[4] Dr. D. R. Horton, Unity and Diversity: The History and Culture of Aboriginal Australia, Australian Bureau of Statistics, http://www.abs.gov.au/Ausstats/abs@.nsf/0/75258e92a5903e75ca2569de0025c188?OpenDocument (2013).

[5] Id.

[6] Australian Indigenous Cultural Heritage, Australia.gov.au, http://australia.gov.au/about-australia/australian-story/austn-indigenous-cultural-heritage (last visited Oct. 17, 2013).

[7] Introduction to Indigenous Australia, Australian Museum, http://australianmuseum.net.au/Indigenous-Australia-Introduction (last visited Oct. 17, 2013).

[8] Introduction to Indigenous Australia, Australian Museum, http://australianmuseum.net.au/Indigenous-Australia-Introduction (last visited Oct. 17, 2013).

[9] Eleanor Bourke, Australia’s First Peoples: Identity and Population, in Aboriginal Australia 38, 40 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[10] Introduction to Indigenous Australia, Australian Museum, http://australianmuseum.net.au/Indigenous-Australia-Introduction (last visited Oct. 17, 2013).

[11] The Land, Australia Museum, http://australianmuseum.net.au/Indigenous-Australia-The-Land (last visited Oct. 17, 2013).

[12] Steve Webb, Out of the Dreaming: The Origin of the Australian Continent and the Culture of Its Original People 38 (2008).

[13] Harvey Arden, Dreamkeepers 4 (1994).

[14] Bill Edwards, Living the Dreaming, in Aboriginal Australia 77, 81 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[15] Id. at 80.

[16] Id. at 80.

[17] The Dreaming, Australia.gov.au, http://australia.gov.au/about-australia/australian-story/dreaming (last visited Oct.17, 2013).

[18] Harvey Arden, Dreamkeepers 5 (1994).

[19] The Dreaming, Australia.gov.au, http://australia.gov.au/about-australia/australian-story/dreaming (last visited Oct.17, 2013).

[20] Bill Edwards, Living the Dreaming, in Aboriginal Australia 77, 79 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[21] Id.

[22] Colin Bourke & Helen Cox, Two Laws: One Land, Aboriginal Australia 56,56 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[23] Colin Bourke & Helen Cox, Two Laws: One Land, Aboriginal Australia 56,56 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998); Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 49 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[24] Colin Bourke & Helen Cox, Two Laws: One Land, Aboriginal Australia 56,56 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[25] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 84 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[26] Id.

[27] Id.

[28] Colin Bourke & Helen Cox, Two Laws: One Land, Aboriginal Australia 56, 56 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[29] Id.

[30] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 84 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[31] Scott Cane, Pila Nguru: The Spinifex People 81, 81-83 (2002).

[32] Id.

[33] Rosemary Hunter, Aboriginal Histories, Australian Histories, and the Law, in In the Age of Mabo 1, 2 (Brian Attwood ed., 1996).

[34] Id.

[35] Robert Lawlor, Voices of the First Day 279 (1991).

[36] Introduction to Indigenous Australia, Australian Museum, http://australianmuseum.net.au/Indigenous-Australia-Introduction (last visited Oct. 17, 2013).

[37] Id.

[38] Robert Lawlor, Voices of the First Day 279 (1991).

[39] Social Organization, AboriginalCulture.com.au, http://www.aboriginalculture.com.au/socialorganisation.shtml (last visited Oct. 18, 2013).

[40] Id.

[41] Robert Lawlor, Voices of the First Day 279 (1991).

[42] Id.

[43] Id.

[44] Id. at 280.

[45] Kenneth Maddock, The Australian Aborigines 29 (1973).

[46] Robert Lawlor, Voices of the First Day 280 (1991).

[47] Id.

[48] Id.

[49] Ronald M. Berndt & Catherine H. Berndt, The World of the First Australians 108 (1999).

[50] Climactic Extremes, Australian Government: Geoscience Australia, http://www.ga.gov.au/education/geoscience-basics/dimensions/climatic-extremes.html (last visited Oct. 18, 2013).

[51] Kenneth Maddock, The Australian Aborigines 27 (1973).

[52] Social Organization, AboriginalCulture.com.au, http://www.aboriginalculture.com.au/socialorganisation.shtml (last visited Oct. 18, 2013).

[53] Robert Lawlor, Voices of the First Day 280 (1991).

[54] Social Organization, AboriginalCulture.com.au, http://www.aboriginalculture.com.au/socialorganisation.shtml (last visited Oct. 18, 2013); Robert Lawlor, Voices of the First Day 280 (1991).

[55] Social Organization, AboriginalCulture.com.au, http://www.aboriginalculture.com.au/socialorganisation.shtml (last visited Oct. 18, 2013).

[56] Id.

[57] Australian Indigenous Cultural Heritage, Australia.gov.au, http://australia.gov.au/about-australia/australian-story/austn-indigenous-cultural-heritage (last visited Oct. 17, 2013).

[58] Colin Bourke & Bill Edwards, Family and Kinship, in Aboriginal Australia 100, 107 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[59] Id.

[60] Id.

[61] Kenneth Maddock, The Australian Aborigines 73 (1973).

[62] Kenneth Maddock, The Australian Aborigines 73 (1973); Colin Bourke & Bill Edwards, Family and Kinship, in Aboriginal Australia 100, 107 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[63] Social Organization, AboriginalCulture.com.au, http://www.aboriginalculture.com.au/socialorganisation.shtml (last visited Oct. 18, 2013).

[64] Robert Lawlor, Voices of the First Day 283 (1991).

[65] Kenneth Maddock, The Australian Aborigines 74 (1973).

[66] Id.

[67] Id. at 76.

[68] Id. at 83.

[69] Id. at 83.

[70] Ian Keen, Aboriginal Economy and Society: Australia at the Threshold of Colonisation 178 (2004).

[71] Id.

[72] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 333 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[73] Id.

[74] Id.

[75] Ian Keen, Aboriginal Economy and Society: Australia at the Threshold of Colonisation 178 (2004).

[76] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 332 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[77] Id.

[78] Id.

[79] Robert Lawlor, Voices of the First Day 243 (1991).

[80] Id.

[81] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 268 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[82] Ian Keen, Aboriginal Economy and Society: Australia at the Threshold of Colonisation 174 (2004).

[83] Ian Keen, Aboriginal Economy and Society: Australia at the Threshold of Colonisation 176 (2004); Colin Bourke & Bill Edwards, Family and Kinship, in Aboriginal Australia 100, 104 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[84] Colin Bourke & Bill Edwards, Family and Kinship, in Aboriginal Australia 100, 104 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[85] Robert Lawlor, Voices of the First Day 244 (1991).

[86] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 268 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[87] Robert Lawlor, Voices of the First Day 245 (1991).

[88] Id.

[89] Ronald M. Berndt & Catherine H. Berndt, The World of the First Australians 81 (1999).

[90] Id.

[91] Id.

[92] Robert Lawlor, Voices of the First Day 245 (1991).

[93] Stephanie Fryer-Smith, The Aboriginal Benchbook for Western Australian Courts 2:15 (2002).

[94] Id.

[95] Robert Lawlor, Voices of the First Day 245 (1991).

[96] Id.

[97] Id. at 252.

[98] R. G. Schwab, The Calculus of Reciprocity: Principles and Implications of Aboriginal Sharing 7 (Australian National University, 1995) available at http://caepr.anu.edu.au/Publications/DP/1995DP100.php.

[99] Id. at 13.

[100] Id. at 7.

[101] Robert Lawlor, Voices of the First Day 252 (1991).

[102] Id.

[103] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 270 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[104] Id. at 271.

[105] Id. at 271.

[106] Id. at 271.

[107] Id. at 271.

[108] Id. at 271.

[109] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 271 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[110] Colin Bourke & Helen Cox, Two Laws: One Land, Aboriginal Australia 56, 57 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[111] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 84 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[112] Ronald M. Berndt & Catherine H. Berndt, The World of the First Australians 343 (1999).

[113] Law Reform Commission of Western Australia, Aboriginal Customary laws: Project 94 Discussion Papers 88 (2005), available at http://www.lrc.justice.wa.gov.au/P/project_94.aspx#downloads.

[114] Id.

[115] Colin Bourke & Helen Cox, Two Laws: One Land, Aboriginal Australia 56, 57 (Colin Bourke, Eleanor Bourke & Bill Edwards, eds., 1998).

[116] Ronald M. Berndt & Catherine H. Berndt, The World of the First Australians 350 (1999).

[117] Id.

[118] Id. at 351.

[119] Id. at 351.

[120] Id. at 351.

[121] Id. at 351.

[122] Ronald M. Berndt & Catherine H. Berndt, The World of the First Australians 351 (1999).

[123] Id.

[124] Id.

[125] Id. at 356.

[126] Id. at 356.

[127] Ronald M. Berndt & Catherine H. Berndt, The World of the First Australians 356-7 (1999).

[128] Id. at 356.

[129] Ronald M. Berndt & Catherine H. Berndt, The World of the First Australians 357 (1999).

[130] Id.

[131] Id.

[132] Id. at 358.