Some Issues in Aboriginal Justice Research:

The over-representation of Aboriginal people in the Canadian criminal justice system is the context within which the particular case of Aboriginal women is explored. This paper provides an explanation for the incidence and types of crime of Aboriginal women in order to identify the need to better understand the theoretical and methodological issues in the relationship of Aboriginal people to the broader society, in general, and to the criminal justice system is particular.     

Understanding the Elevated Risk of Partner Violence Against Aboriginal Women: A Comparison of Two Nationally Representative Surveys of Canada

Using two large-scale representative samples of Canada collected in 1999 and 2004, this study examined Aboriginal women’s elevated risk for violent victimization relative to non-Aboriginal women. Aboriginal women had about four times the odds of experiencing violence compared to non-Aboriginal women in both surveys. In general, there were fewer differences in the impact of risk factors between Aboriginal and non-Aboriginal women in the 2004 than the 1999 survey, resulting in risk factors accounting for less of Aboriginal women’s elevated odds of experiencing violence in the 2004 than the 1999 survey. In both surveys, controlling for all available risk factors did not fully account for Aboriginal women’s elevated odds of experiencing violence. Results were consistent with the theory that much of Aboriginal women’s elevated odds of violent victimization may be linked to colonization. Future research is needed to provide direct evidence of a connection between cultural loss and Aboriginal women’s elevated odds of violent victimization.     

Rhythms of Law: Aboriginal Jurisprudence and the Anthropocene

On 1 December 2019, over one hundred Aboriginal nations performed ancestral and creation dances in synchrony across the Australian continent. One of the communities that danced was the Anaiwan nation from the north-eastern region of New South Wales, Australia. Since 2014 I have been working with Anaiwan people in a collaborative activist research project, creating and maintaining an Aboriginal community garden on the fringes of my hometown of Armidale as a site for land reclamation and decolonising, multispecies research. The community garden is adjacent to the site of the old East Armidale Aboriginal Reserve, where over one hundred dispossessed Aboriginal people were forced to live on the municipal town garbage depot in the mid-twentieth century. This paper positions both the Nation Dance 2019 movement, and the Armidale Aboriginal Community Garden, as rhythmic events that activate Aboriginal Law and sovereignty that is held enduring in the land but that has been buried alive by the settler-colonial state. Focusing on the tensions between deep Indigenous ancestral temporality and colonial territoriality, I argue that the emergence of the Anthropocene reveals a dangerous dissonance between the rhythms of Aboriginal Law patterned through present-day Australian environments and the grid-based structures of colonial governance imposed upon them.

     

Forensic aspects of aboriginal skeletal remains in Australia

The assessment of Aboriginal skeletal remains and their distinction from whites is an area of major importance to the Australian forensic pathologist. The Aborigines, the indigenous people of Australia, are a distinct racial group with many characteristic anthropological features. The assessment of race is best made from an examination of cranial traits, 20 which are of value. A characteristic pattern of attrition of the teeth provides a method for establishing a skeleton as pre-European contact Aboriginal or postcontact tribal Aboriginal. The limb proportions of Aborigines differ significantly from other races and provide a useful adjunct to other racial discriminants. Quantifiable sex discriminants in the Aboriginal pelvis and femur differ in their ranges of values from other races. The humerus and shoulder girdle are of no value in making a racial distinction and are of limited value in sexing Aboriginal skeletons. Some pathological changes seen in Aboriginal skeletons are of value in corroborating race. These pathological changes include evulsion of incisor teeth, healed "parry fractures" of the ulnae, tibial squatting facets, treponemal changes, and auditory exostoses. The place and manner of burial together with related artefacts, features, and ecofacts may also provide corroboration.     

Authorship,Authenticity, and Intellectual Property in Australian Aboriginal Art

This article analyzes research and legal cases about authorship, authenticity, and intellectual property in Aboriginal art. The concepts of Aboriginality, authenticity, and ownership are used to show the complexities of Aboriginal law, legal copyright, and the moral rights framework. The clan ownership of Dreaming makes Aboriginal artists' relationship different to other artists' individual ownership of their work. Research on this topic by members of the Faculty of Business and Law unit of the Centre for Leisure Management Research at Deakin University was undertaken for the Australian Institute of Aboriginal and Torres Strait Islander Studies. This article provides significant contextual analyses of major issues leading to Commonwealth Government inquiries and legislation in Australia during 2006-8.     

To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

Traditional punishment and unexpected death in Central Australia.

Three cases of traditional punishment in Central Australian Aboriginal men are presented in which the thighs were speared or stabbed as part of a "payback" system. In two cases, an unexpected effect of the stabbing or spearing was death due to severing of major leg vessels. The relationship between customary Aboriginal law and general law in Australia has not been clearly defined; however, these cases demonstrate that significant and untoward effects may result from traditional punishments. Pathologists working near traditional Australian Aboriginal communities may still encounter such injuries at autopsy.     

Introduction

This paper presents the results of the first two longitudinal historical cradle-to-grave datasets constructed in Australia: the Aboriginal population of the state of Victoria, reconstituted backwards using genealogical research and vital registrations, 1835–1930; and an impoverished European population born at the Melbourne Lying-In Hospital, 1857–1900 and traced until 1985. It investigates the hypothesis that the health transition in indigenous people was different from that of the dominant non-indigenous population. Both of these studied sub-populations were highly stressed, resulting in high infant mortality and persistent tuberculosis mortality. The Aboriginal population suffered the additional burdens of racism and social exclusion, even though after the passage of the 1886 ‘Half-Castes Act’, the majority of Aboriginal Victorians were legally ‘white’. The impact of that legislation and the systematic exclusion of Aboriginal Victorians from federal entitlements in the twentieth century sent the Aboriginal health transition into reverse. The contrasting fates of poor whites and ‘unofficial blacks’ during the health transition demonstrate the health burdens of inequality and racial discrimination, and reveal that ‘the gap’ in life expectancy between Indigenous and non-Indigenous Australians is a historical product of long-term government policy and exclusion from citizenship and its entitlements.     

Implications for DNA identification arising from an analysis of Australian forensic databases

Previous analyses of Australian samples have suggested that populations of the same broad racial group (Caucasian, Asian, Aboriginal) tend to be genetically similar across states. This suggests that a single national Australian database for each such group may be feasible, which would greatly facilitate casework. We have investigated samples drawn from each of these groups in different Australian states, and have quantified the genetic homogeneity across states within each racial group in terms of the "coancestry coefficient" F(ST). In accord with earlier results, we find that F(ST) values, as estimated from these data, are very small for Caucasians and Asians, usually <0.5%. We find that "declared" Aborigines (which includes many with partly Aboriginal genetic heritage) are also genetically similar across states, although they display some differentiation from a "pure" Aboriginal population (almost entirely of Aboriginal genetic heritage).     

Predictive accuracy of dynamic risk factors for aboriginal and non-aboriginal sex offenders: an exploratory comparison using STABLE-2007

Although Aboriginal offenders are overrepresented in Canadian prisons, there is limited research examining the extent to which commonly used risk factors and risk scales are applicable to Aboriginals. Aboriginal (n = 88) and non-Aboriginal (n = 509) sex offenders on community supervision were compared on the dynamic risk factors of STABLE-2007. Data on sexual, violent, any crime, and any recidivism (including breaches) were collected with an average follow-up of 3.4 years. Aboriginal offenders scored significantly higher than non-Aboriginal offenders on STABLE-2007 total scores and on several items measuring general criminality. STABLE-2007 did not significantly predict recidivism with Aboriginal offenders (although it did for non-Aboriginals). The general antisociality items were generally significantly less predictive for Aboriginals than non-Aboriginals, whereas items assessing sexual self-regulation and relationship stability predicted similarly for both groups. These exploratory results suggest that Aboriginal sex offenders are a higher-needs group but that some STABLE-2007 items are not predictive with this population.     

Is there a role for the application of customary law in addressing aboriginal criminality in Australia

In the past decade, there has been no shortage of empirical evidence that supports the poor health, education, and employment prospects for Aboriginal Australians. Moreover, Aboriginal people are far more likely than non-Aboriginal people to be drawn to the attention of police and taken into custody. Their presence in the criminal courts is disproportionately high and they are vastly over-represented in prison. Commission after commission and study after study have concluded that Indigenous Australians are at vastly greater risk of threat to life, victimization, and health than non-Indigenous Australians. This essay argues that there are grounds for greater recognition of Aboriginal customary law as a means of addressing the malaise. It reviews the political and legal climate in which such responses to Aboriginal criminality are currently being addressed. Presented at the Academy of Criminal Justice Sciences Conference, Louisville, Kentucky, 13 March 1997. The author acknowledges the help of Paul Martin, legal practice librarian, University of South Australia and the resources of Graceland College.     

Colonialism and the health transition: Aboriginal Australians and poor whites compared, Victoria, 1850–1985

This paper presents the results of the first two longitudinal historical cradle-to-grave datasets constructed in Australia: the Aboriginal population of the state of Victoria, reconstituted backwards using genealogical research and vital registrations, 1835–1930; and an impoverished European population born at the Melbourne Lying-In Hospital, 1857–1900 and traced until 1985. It investigates the hypothesis that the health transition in indigenous people was different from that of the dominant non-indigenous population. Both of these studied sub-populations were highly stressed, resulting in high infant mortality and persistent tuberculosis mortality. The Aboriginal population suffered the additional burdens of racism and social exclusion, even though after the passage of the 1886 ‘Half-Castes Act’, the majority of Aboriginal Victorians were legally ‘white’. The impact of that legislation and the systematic exclusion of Aboriginal Victorians from federal entitlements in the twentieth century sent the Aboriginal health transition into reverse. The contrasting fates of poor whites and ‘unofficial blacks’ during the health transition demonstrate the health burdens of inequality and racial discrimination, and reveal that ‘the gap’ in life expectancy between Indigenous and non-Indigenous Australians is a historical product of long-term government policy and exclusion from citizenship and its entitlements.     

Aboriginal youth with foetal alcohol spectrum disorder and enmeshment in the Australian justice system: can an intercultural form of restorative justice make a difference?

Aboriginal youth with Foetal Alcohol Spectrum Disorder (FASD) are overrepresented in the justice system. FASD results from prenatal alcohol exposure, and may lead to cognitive, social and behavioural difficulties that increase susceptibility to contact with the justice system. This paper explores the potential contribution of restorative justice in creating diversionary options for Aboriginal youth with FASD, and related cognitive impairments, to prevent enmeshment in the justice system. The lesson from work in Australia and New Zealand is that restorative justice and Indigenous justice are different, but not irreconcilable, projects. We suggest that there is the potential for creating rich intercultural engagement spaces ‘in between’ restorative practices and Indigenous processes: provided that restorative justice – as an essentially Eurocentric paradigm of the Global North – does not attempt to colonise Indigenous justice. An appropriate model would have Aboriginal people engaged in the planning and management of diversionary options, with greater focus on diversion into place-based, Aboriginal owned and managed services. Restorative justice needs to engage with the historical demands of Indigenous peoples for their land and their way of life; though constantly imperilled by forces of neo-liberalism and colonialism, Indigenous peoples remain resilient and provide a vision of an alternative to Euro-modernity.     

Informal powers and the removal of Aboriginal children: Consequences for health and social order

Current high levels of morbidity and mortality, and high rates of incarceration among Australian Aboriginal populations are related historically to the attempted separation of Aboriginal people from family and community. The paper discusses these events through an analysis of legal and extra-legal forms of power in the late 19th century in Victoria, and through an analysis of the workings of the informal powers of administrators and mission superintendents, within a broader framework of liberal political reason.     

Social and legal alienation: The case of aboriginal peoples in Canada

The concept ‘alienation’ has become a relatively common expression in contemporary society, the usage of which often belies the varied meanings it has had historically and in contemporary literature. Using the sociology of knowledge, an historical analysis of the use of ‘alienation’ in law, the social sciences, and religion reveals a rich and varied tradition. ‘Alienation’ arose with a positive religious meaning and subsequently became a cornerstone for the new property rights of an emerging capitalist economic order. In this new industrial order, social critics gave a negative meaning to ‘alienation’ that became the basis for the social scientific concept. The legal freedom to alienate property has arguably led to the marginalization of certain segments of society. A specific example of this process can be found in the struggles of Aboriginal peoples against their colonizers. Through the process of legal alienation, Aboriginal peoples lost not only their land, but their culture and self-worth. In recent years, Aboriginal peoples have attempted to reduce their social alienation through a variety of de-alienation strategies, including social, political, and legal struggles. One tactic has been land claim litigation. Therefore, through efforts to obtain legal alienation of land, Aboriginal peoples strive to reduce their social alienation and oppression.     

In Vivo Facial Tissue Depth for Canadian Aboriginal Children: A Case Study from Nova Scotia,Canada

This study examines facial tissue depth in Canadian Aboriginal children. Using ultrasound, measurements were taken at 19 points on the faces of 392 individuals aged 3–18 years old. The relationships between tissue thickness, age, and sex were investigated. A positive linear trend may exist between tissue thickness and age for Aboriginal females and males at multiple points. No points show significant differences in facial tissue depth between males and females aged 3–8 years old; seven points show significant differences in facial tissue depth between males and females aged 9–13 years old; and five points show significant differences in facial tissue depth between males and females aged 14–18 years old. Comparisons were made with White Americans and African Nova Scotians. These data can assist in 3‐D facial reconstructions and aid in establishing an individual's identity. Previously, no data existed for facial tissue thickness in Canadian Aboriginal populations.     

Adaptations of Aboriginal justice in the United States

Aboriginal justice in the United States is unique for two reasons. First, Aboriginal Natives subscribed to the Harmony Ethos, a system whereby Natives did not detach themselves from nature. Unlike Western cultures, they lived cooperatively with ‘Mother Earth’, ‘Father Sky’ and everything these two entities represented. Secondly, no other group in US history has been subjected to the magnitude of deliberate policies aimed at their destruction. Manifest physical genocide towards Native peoples was exercised and sanctioned by the US government until the 1890s while the more subtle practice of ‘cultural genocide’ continues to the present. Yet, in spite of these assaults on Native culture, attributes of their Aboriginal ways have not only survived but have experienced a resurgence within the past decade. Unfortunately, it appears that the more Native traditions survive, the more adamant are local, state, and federal efforts towards destroying any remnants of traditional values and customs including tribal autonomy.     

Kumarangk (Hindmarsh Island) and the Politics of Natural Justice under Settler‐Colonialism

This article examines the impact of the application of apparently impartial principles of procedural fairness and natural justice on the construction of “authentic” and “inauthentic” knowledge of Aboriginal culture. It discusses the progression of the Kumarangk (Hindmarsh Island) court cases and the legal construction of public participation in the making of political decisions affecting Aboriginal interests in land. In examining the politics of competing interests in land, this article reflects on the tension between Indigenous interests in land and settler developmentalism in relation to the Australian jurisprudence of procedural fairness and natural justice. The arguments running through the article concern the questions of the ways in which the liberal restraint on power is embodied in the impartial principles of administrative law, where that power creates rather than infringes upon rights, why it generates a particular legal construction of Aboriginal interests in land and cultural heritage, and the extent to which this plays a role in the maintenance of relations of settler‐colonial dispossession.     

Frauds and fakes in the Australian aboriginal art market

This article examines the topic of problematic art in the Australian Aboriginal art market. For Aboriginal people art plays an important social, economic and political role. It has also become a major source of income for many. Thus when the integrity of that art is challenged by allegations of fraud and deception it is imperative to explore the veracity of these claims and the responses made to them. In the article particular attention is devoted to those responses made through both the Australian criminal and civil systems of justice. This analysis shows that there are special problems associated with establishing the authenticity of Aboriginal works of art which tend to hamper the prosecution of fraud cases while a dearth of expertise and interest in art fraud at large among Australian law enforcement bodies is a further barrier to effective action. The conclusion is reached that at present the Australian legal system is poorly equipped to deal with frauds and fakes in the Indigenous art market—a situation which will take time and more imaginative solutions to remedy.     

What Was It They Lost?

Abstract

The issue of family violence is a modern scourge on Canadian society. Recent estimates indicate that during the previous five years in Canada, 7% of women and 6% of men encountered spousal violence (Statistics Canada, 2005). Furthermore, Aboriginal communities in Canada experience disproportionately high rates of family violence, due to a myriad of reasons. While the impact of colonization continues to affect the lives of Aboriginal people, what is less well known are the more recent social and emotional effects of excessive resource development, particularly in isolated communities. Through an examination of the perspectives of community workers regarding family violence in their community, located in northern Canada and displaced by hydroelectric development, a range of ideas were explored. Critical race theory provides a backdrop for understanding the endemic nature of the systemic racism that characterizes the relationship between Aboriginal peoples and the government. The study demonstrates that the social and emotional impact of excessive resource development continues to resonate in a negative manner, even many years following displacement.