Articles – The Centre for Independent Studies

Indigenous law: Fix it if it’s wrong

Jacinta Nampijinpa Price

05 February 2020 | The Australian

Claims that those of us who decry the violence against Aboriginal women and children are seeking the abandonment of indigen­ous culture are a straw man argument meant to deflect attention from the real issues.

Culture is an important part of indigenous life. But culture — every culture — changes. We no longer go about daily life in the traditional garb. We no longer eat only bush foods caught in the traditional way. And we should no longer allow the tradition of domination, violence, rape and assault to continue harming and killing indigenous women and kids.

Yingiya Guyula was right when he stated on this page that I am not schooled in Yolngu law. However, the explanation of Yolngu law I cited from the ­Journal of the Northern Territ­ory Law Society was written — as Yingiya also points out — by a Yolngu elder, George Pascoe Gaymarani, referred to as “a leading Yolngu customary law identity and Ngarra elder” and was “prepared in consultation with northeast and west Arnhem Land elders”.

Whether or not the document has been debated in the community, the problem shows in cases such as Pascoe v Hales, when Yolngu man Jackie Pascoe raped and held at gunpoint his 15-year-old “promised” wife. In Australian law, a girl of 15 is not of legal age to have sex, or marry. This is the law Yingiya has sworn an oath to uphold as a member of the Legislative Assembly.

I too know my law and the culture I grew up in. As Aboriginal women, it is well understood that we could be killed if we trespass on sacred men’s ground.

Senior women in my family have told me, in whispers, of the spearing of women by their husbands and of the executio­n of a teenage girl for refusing to go to a middle-aged promised husband who had alread­y killed a wife.

All my life I have been taught to fear the law and that I could be killed if I broke it. All my life I have seen our women beaten, seen their wounds, visited them in hospital, been to their funerals.

Perhaps you can forgive me for believing my own female elders. Perhaps you’ll forgive me for believing the law that terrifies women and allows for their rape, bashing and murder — in conjunct­ion with the other terrib­le problems of substance abuse, under-education and lack of employment — enables the epidemic of violence that is ­killing our women and girls.

I am also deeply concerned about the fact that 23 per cent of Australian partner homicides are indigenous (despite us being only 3 per cent of the population) and that in the Northern Territ­ory 85 per cent of partner homicides are indigenous.

Does the Australian law that states an underage girl cannot marry qualify as one of the “foreign­ solutions” Yingiya critic­ises? Can he honestly tell us the cultural laws no longer apply or are not resorted to in so many communities?

Whitefellas continually change Australian law to make it work better. Yingiya is an MLA as my mother once was. He now has the opportunity to help make the law work better for all of us Territorians.

All I’m asking is that we Aboriginal people take responsibility for our own law and be willing to keep what is precious and beautiful but abandon what no longer works and denies us our human rights as Australian citizens.

Yes, we do need a conversation and I — and the other indige­nous people who share my concerns — want to be part of it. But it will not work unless everybody, women and young people as well, the victims of the violence, are allowed to have a say. Their voices must finally be heard.

I doubt they will be speaking in support of cultural laws that enable — and excuse — the rapes, assaults and murders.

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