Outline the key differences between European law and Aboriginal

and Torres Strait Islander Customary Laws

Both Systems provided well enough for their people and their needs, they both aided
in supporting well-structured communities/societies. The main differences the two
have include:

Customary law has existed long before European Law (English Law) which
was first established following the battles of 1066, before which it was a
collection of traditions and a crude unsophisticated feudal system.
Customary Law was also not written as European law is which includes many
acts and bills unlike customary law which there isnt actually much evidence
of its existence recorded physically
Customary law was also created with the interests of aboriginal communities
in mind, European law has evolved around the idea of common law and
modern societal customs to provide fairness and justice to the public
Customary law although much older is also a lot more barbaric and
unsophisticated compared to European law as it involves brutal punishments
such as spearing and beatings and other odd forms of payback, this however
make it any less effective in keeping the peace
The elders who preside over customary law play a similar role to Judges in
modern society and often placed in their roles due to their wisdom,
experience and knowledge of traditional aboriginal culture
In customary law the concept of ownership is more or less disregarded or
unknown to them, they believe everything belongs to the land and it is their
job to take care of it, unlike in European law and society, ownership is very
heavily woven into the legal system

Explain the concept of Terra Nullius and its impact on Customary

Laws

Terra nullius is a Latin phrase meaning land belonging to no one. The

English interpreted this as land which is unoccupied or unsettled in the
European sense, that is without houses or cultivated pastures the local
people had not developed towns, roads or farms and displayed no social
structure of government.1 Upon their discovery of Australia the English
declared it Terra Nullius despite the presence of the aboriginal people of
Australia. At the time, they acted as if the aboriginals did not exist and
proceeded to claim ownership of the land, this is where the myth of terra
nullius comes from, as Australia was wrongfully seized as under
International law terra nullius could only be applied if the land was
uninhabited and should it be inhabited it must be either bought or fought
for, none of which the English did. The Doctrine ignored the rights and customary
laws of Aborigines and Torres Strait Islanders. The settlers, moreover, generally had a lack of
understanding of
these customary laws.1 In Practical terms it devastated their culture and reduced the first people
to an oppressed minority whose views didnt count 2 The Aboriginals basically had their land,
culture and history ripped out from under their very feet, their legal system was destroyed by terra
nullius and was robbed of all pride and dignity they had, until recently that is.

References
1
Stage 6. (2017). The Doctrine of Terra Nullius. [online] Available at:
http://stage6.pbworks.com/f/The+Doctrine+of+terra+nullius.pdf [Accessed 27
Feb. 2017]
2
Brendan Pentony (2017)
Beazer, M. (n.d.). Justice & outcomes 13e. 1st ed.
The Conversation. (2017). Why Australia won't recognise Indigenous customary
law. [online] Available at: https://theconversation.com/why-australia-wont-
recognise-indigenous-customary-law-60370 [Accessed 28 Feb. 2017].
TheFreeDictionary.com. (2017). common law. [online] Available at: http://legal-
dictionary.thefreedictionary.com/common+law [Accessed 28 Feb. 2017].
Workingwithindigenousaustralians.info. (2017). Practice Implications: Family and
Kinship: Working with Indigenous Australians :. [online] Available at:
http://www.workingwithindigenousaustralians.info/content/Practice_Implicatio
ns_5_Fafmily_and_Kinship.html [Accessed 28 Feb. 2017].
http://legal-
dictionary.thefreedictionary.com/common+law
http://www.workingwithindigenousaustralians.info/conte
nt/Practice_Implications_5_Fafmily_and_Kinship.html
https://theconversation.com/why-australia-wont-
recognise-indigenous-customary-law-60370