Legal Pluralism and Treaty-Making in Australia

Project Summary

In legal scholarship, ‘legal pluralism’ refers to the co-existence of two or more legal systems in a shared territory or society. Australia is a legally plural society, in which Indigenous law exists alongside Settler law. Settler legal traditions however, assert the primacy of settler law over Indigenous law, in large part because in this tradition, law is thought to derive only from sovereigns.  Since Australian law does not recognise Indigenous sovereignty, in principle it does not recognise Indigenous legal systems. There are some exceptions, for example in native title law, which show that recognition is possible, even within the settler legal tradition. Our starting point is that Indigenous legal systems do not depend on settler law for their authority. Indigenous communities govern themselves in accordance with their own law and legal traditions, and this self-governance is an expression of Indigenous sovereignty. In this workshop we hope to take up the challenge of recognition, and will discuss the ways that treaties (and other agreements) could assist in making space for Indigenous law to operate without interference.  The idea of legal pluralism can help to shift the focus from the limitations settler law, back to Indigenous self-governance, and to the ways that Indigenous communities make and implement their law.

‘Legal Pluralism and Treaty-making workshop’ was held at Melbourne Law School on 21 February 2020. The workshop was an opportunity for experts across the legal sector, academia and the community to come together and discuss legal pluralism and the treaty-making process in Australia.

The workshop was hosted by Kirsty Gover (Associate Dean Indigenous Recognition), Eddie Cubillo (MLS Senior Indigenous Fellow), Sana Nakata (MLS Indigenous Scholar in Residence 2019) and Mary Spiers Williams (MLS Indigenous Scholar in Residence 2019)