ABSTRACT
Australia’s treatment of its Indigenous people in terms of dispossession of land is well known. What is thought of less is Australia’s lack of attention to the civil law needs of its Indigenous people. In the last twenty years there has finally been some attention paid to the issues Indigenous people face in respect of the common law of succession and how it affects them. The Northern Territory brought in an Indigenous customary law provision in 1979 but it has been little used. In 2009 NSW amended its intestacy legislation to allow Indigenous customary law to be used where the deceased died intestate. For nearly 11 years there were no cases using the legislation, but now there have been several. How these cases have dealt with the concept of customary law, and how the interaction of the customary law with the statutory and common law of inheritance in Australia has affected this jurisdiction is explored in this paper. Instead of treating Indigenous law using conflicts of laws methods, other methods have been used, sometimes for sound reasons, but running the risk of not accepting customary law as ‘real’ law. The paper asks how the questions of authority are to be dealt with in situations where the common law doesn’t really see the authority which customary law adherents see. Complex issues concerning access to justice may affect the ‘coherence’ of the concept of customary law in this situation.
Prue Vines, Australia’s (Slow) Experiment with Indigenous Customary Law in Intestacy, 4 Journal of Commonwealth Law 43 (2023).
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