Cultural Worlds » Legal systems

An Indigenous voice – How is Yolngu law separate from the Governments Law

Tim Trudgen — Sun, 11 Jan 2009 23:48:38 +0000

Here is a YouTube video, produced independently of us, that is worth watching because it contains the genuine voice of an significant Indigenous person from one the communities most effected by Government polices and approaches since the Emergency Response Intervention into Northern Territory Aboriginal Communities. She speaks of why she sees her people’s Law and the Mainstream Law of Australia belonging to the ‘Balanda‘ (the Europeans/non-Indigenous) as separate from each other. At the beginning of the video she points out that one of the main reasons for the separation of the two Law systems is the lack of understanding and recognition on both sides. Much in the Balanda Law is “hidden” she says.

Most people will have found some difficulty in really understanding what she was saying about her law at a couple of points in this film because of references to footprints, names and the like. These are references to massive concepts in the Yolngu peoples Law, some of which are foundational or constituting aspect of their law. That is they make reference to the basis by which rights and responsibilities of law originate. They do not refer literally just to ‘footprints’ or just ‘names’ in the same way that ‘The Constitution’ is not referring to just a piece of paper.

I hope you all pick up on the opinion she expresses that the Balanda Law, Australian Mainstream Law, is being used against Yolngu – to trap them in the inconsistencies of the law. And she thinks that Balanda (non-Indigenous people) do not even realise they are doing this. But, perhaps she is being polite.

The video message is targeted at ‘Government’ so it would be appreciated if this was passed on to anyone who is a member of parliament or anyone you know that works for a Government department.

An example of disempowerment- Why dont you talk to us first?

Tim Trudgen — Sun, 21 Dec 2008 11:09:54 +0000

If you have been to an Aboriginal Community in the NT then you would know that in some places community announcements and other messages are broadcast over a loud speaker to anyone in earshot. In NE Arnhem Land most of these messages are in the local language with splatterings of English often by a local land owner, Elder or senior Djuŋgaya (manager/administrator in the Indigenous domain). Recently I heard one of these messages, and while I have not acquired the skill that Yolngu have of understanding these messages from a distance, I was able to pick up a very clear thread from this message. The Elder speaking was quite irate about decisions that had been made by Government and organisations that had not been discussed with local leaders. In fact he finished this speech by addressing the Balanda in the community directly in English, which is a rare occurance. I want to share his message to them with you because this is an issue that deeply hurts and disempowers Indigenous people and their communities. I poorly summarise his statement….

“Why don’t you Balanda explain to us what are your plans for us? What is the Government’s plan for us or the Shire’s or whoever’s plan for us? What do you have in mind for our future? Someone come and explain it to me? We don’t know? You don’t talk to us. You just change things. Where is the consultation, where is the negotiation. We have our own parliaments; our own system of law. You should be talking to us first.”

His speech demonstrated that Indigenous people in some remote communities feel like all the decisions about their community are being made for them. Not only do they want to know what is going on, they feel they have a right to know and a right to be part of the decision making process. Yolŋu have been demanding this right since the Balanda first imposed on them. The jurisdiction that their own systems of law gives them over the use of land and governance of their own society, means that decisions made by the Balanda systems without consulting the appropriate person in their own system are seen as imposing, controlling or illegitimate. These are not naive thoughts. Yolngu struggle to understand how our political system really works, but they are fully aware that their land owners, leaders and elders have no say in the constant changes that complicate their lives, and determine how their land is used, despite a system that is supposed to support them. The last year has been particularly difficult with the coercive tactics of the intervention, removing the permit system, imposing police forces and compulsory income management all without preliminary consultation. On top of this the NT government disbanded the local community councils, forming them into super shires and so severely limiting local control of the townships. The statement summarised above implies an anger and perhaps a fear of the Government and the ‘Balanda’ system’s plans for them. This is evidence of the lack of information people have about the mainstream Australian system, leaving a big question mark about how the power that Balanda exerts over them will be used. Just as this Yolngu man suggests, Indigenous communities are dependent on non-Indigenous personnel to keep them informed of the plans of Government and other organisations. The lack of real consultation also means that Indigenous people are excluded from the debates. Take for example the debate about bilingual education. This year at the word of the Minister Indigenous languages are all but banned from being taught and used for teaching in the class room. On such issues the media presents us with rarely more than a couple of Indigenous people who may or may not represent informed local opinion. Meanwhile a whole range of non-Indigenous experts get to comment on the issue. In addition, those Indigenous people that do get to speak in the media must do so in English, a foreign language to them, as a result they sound simple minded and shallow when their experience and meaning is deep. That Indigenous people are excluded from decisions that effect them is a real experience they face regularly ( hear about this directly from an remote Indigenous voice). We must create ways to consult throughly using the local and traditional systems that the people are using. Consultation takes time. But taking that time to listen and include the peoples system is part of the solution to Indigenous problems because it allows for learning, it encourages, demonstrates respect and empowers Indigenous Australians with the opportunity to speak. In fact, time for good consultation reduces many future complications; but that is another story…

Cross cultural issues confound Australian justice systems.

Tim Trudgen — Tue, 10 Jun 2008 01:18:43 +0000

An interesting report called “An absence of mutual respect” was released at the beginning of June by our friends at ARDS which gives great insight into the difficulties faced by English second language Aboriginal people. It is a report on the problems that arise for the Yolngu peoples in their relationship with the Australian Balanda (non-indigenous) legal system and it goes some way to explaining part of the reasons why Aboriginal people in the Northern Territory of Australia are so over represented in the Jails. The report is of interest from a cross-cultural perspective because it gives insight to the problems that are arising for Aboriginal people at the cultural interface. First the report highlights the effects of Balanda (non-indigenous people) not understanding Yolngu legal systems and the resentment that this can produce for Yolngu people (see page 12 -14). The executive summary states

During the research, many Yolŋu people expressed the opinion that most non-Aboriginal people demonstrated a serious lack of knowledge and understanding in relation to Yolŋu people, Yolŋu law and Yolŋu ways. Consequently, the current situation was perceived by many Yolŋu as being a two-sided problem. Yolŋu conveyed distress that many Balanda did not even recognise that a Yolŋu legal system was in place, hence the title “Bäyŋu Ŋayaŋu-Dapmaranhamirr Rom ga Ŋorra” which means “no existence of deep and mutual respect”.

The report then goes on to investigate the misunderstanding Yolngu people have about the Balanda legal system. One must really read past the executive summary to get at the real value in this report as the summary fails to highlight the power of the reports content. It is an easy report to read, and is packed full of quotes from Indigenous people and short case studies. The real shock comes from page 21, where the research shows that:

Over 95% of Yolŋu surveyed were unable to correctly identify the meaning of the 30 commonly used English legal terms.

These are words that include:

Accuse/Accused, Bail, Consent, Guarantee, Obliged/Not obliged, Sentence, Alleged, Charge, Directly/Indirectly, Guilty, Offend/Breach, Summons, Appear, Commit, Fail/Failure …

What is interesting in relation to some of the things I have been arguing in relation to Indigenous eduction. For those surveyed who had access to government schools, those born after 1965, 97% of their responses indicated that they had either no understanding, or gave completely incorrect meanings to these legal terms. These Government schools did not use Balanda teachers trained in local languages. Those surveyed who were born prior to 1965 and thus had access personnel on the ‘Missions’ who spoke the local languages, still had a many misunderstandings, but where reported to have a much better understanding of the legal system and they responded with a correct or partially correct understanding of the legal terms 10-20% of the time, as against 3% of the time for those born after 1965 (see page 24).

The report includes a series of studies on how individual words were understood and how this has affected Yolngu individuals in their dealings with the legal system. Perhaps most striking was the perception by some Yolŋu that to be “bailed out” meant they were free, often resulting in them breaking their bail commitments to return to court. In 2005 there were over 5000 warrants out for the arrest of people who had breached bail in the Northern Territory, on current jailing rates 80% of these could have been for Aboriginal people. This is a striking insight to the effects of cross-cultural misunderstandings. It highlights for me the importance of minimising such confusion in my communications with Aboriginal people. I hope it also helps some of you to grasp some of the reasons why things may not work out the way we expect when working with Aboriginal people. Please have a quick read or download the report by clicking here (opens in a new window).

A Foreign Australia – Working in Aborignal Communities

Tim Trudgen — Tue, 25 Mar 2008 01:55:45 +0000

If you are working with, for, or planning to enter an Aboriginal community in Australia the first thing you must do is begin to think like you are about to enter an overseas country. Of course physically these Aboriginal communities are in Australia, but the social and cultural reality locally is more like being in a developing nation that has been invaded by western international aid organisations. The primary difference from the situation in actual developing nations is the degree of invasion of dominant culture structures and the availability of financial resources. The Australian Government as the main ‘aid organisation’ in communities has the ablitiy to provide welfare payments consistent with first world living standards. This results in an economic situation on communities that is entirely different from developing nations. But on the other hand like developing nations most social, linguistic, political and cultural aspects of the communities are essentially foreign to the miscellaneous English speaking cultures of Australia. Most Australians are probably aware that people in many of Australia’s remote Indigenous communities speak several local languages as their first languages before English. But what they may not be aware of is that there is a different social order operating behind the back of the mainstream agencies. Take for example law and order. In Arnhem Land, as in other more remote Aboriginal areas the people use kinship structures, as well as ‘ordained’ elders, to determine the appropriate person/s to control violence and mediate a disputes. In the case of a physical assault certain persons in particular kinship relationships have a right, and duty, to use force to stop the assault just as a policeman might in mainstream Australia. Such situations have in the past, and recent history, been mistakenly interpreted by Australian police personnel arriving on the scene. Seeing the force used by the man stopping the original assault, they have attacked or charged this ‘traditional policeman’ instead of the criminal. Such outcomes are devastating for the community, because the original offender may get away to offend again, and the communities most effective system for controlling abuse has been undermined by the errors of the foreign mainstream system. Such errors are not primarily the result of ignorance by dominant culture personnel, but the greater fault is that dominat culture personnel fail to recognise their ignorance. They do not recognise even the possibility that another system may be in operation here. When Australian personnel are positioned overseas in places such as the Solomon Islands, Afghanistan, Timor or with any Australian embassy, there is an understanding that a different jurisdiction, political system and language exists in that place. Expatriate personnel working in foreign countries make every attempt to work with and understand the legitimate pre-existing systems. The same should be the case in Aboriginal Communities, we must be aware of our ignorance and avoid gross assumptions that assume that our western systems are the only ones in operation. Instead, when working with an indigenous community assume you are in a foreign society with its own legitimate and effective social system, recognise your ignorance of it, and ask the seemingly silly questions. If you do people will respect you for it, you will save much damage to the community and you will begin to glimpse the legitimate order, rules and structures through which the local people operate.