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15. The Protection and Distribution of Property

15. The Protection and Distribution of Property

326. Scope of this Chapter. The previous chapter discussed the issue of property distribution in the context of Aboriginal traditional marriage and considered whether it was desirable for the law to be changed to take account of traditional marriages for those purposes.[1] In the areas affecting property distribution it focussed on the recognition of the marriage for the purposes of family provision (testator’s family maintenance) and intestacy. This chapter is concerned with the transfer of property and the problems which may occur if Aboriginal traditions for transfer and distribution do not accord with the legal requirements.

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Distribution of Property between Living Persons[2]

327. Differing Attitudes to Property. Traditional Aboriginal societies were not materialistic. Although land and what might be described as ‘intellectual property’ were of great significance, those material possessions unrelated to ceremonial activities were not:

The range of directly useful material objects is not large ... Basically for women there is the digging stick. For men there are spears, spear-thrower, and perhaps the boomerang and club.[3]

However the giving of gifts (food or other items) was an important way of creating bonds and satisfying obligations within the kinship system:

economic activity was not for personal profit or economic gain. The important thing was not the economic value of the gift given, or the relative value of the gifts in an exchange, but the act of giving and receiving which reinforced social bonds. If Aborigines gave things away, it was not because they did not value things or the rights of private ownership (for they personally owned all their tools and weapons), but that they placed a higher value on fulfilling kinship obligations.[4]

Gifts were not only exchanged to reinforce kinship bonds but also on an inter-tribal basis, and there were extensive trade routes.[5] Berndt and Berndt list the various bases of gift exchange as including:

• gifts made to settle grievances and debts;

• gifts in return for services or for goods which would include gifts associated with carrying out ceremonies:

• formalized gift exchange involving trade between various defined partners:

• general trade: and

• gift exchange which occurs in relation to large sacred ceremonies.[6]

328. Transfers of Personal Property. The general law allows substantial freedom to individuals in the handling and disposition of their property, and imposes, for the most part, minimal requirements of form with respect to the transfer of personal property, especially between living persons. Few conflicts appear to have arisen between Aboriginal customary laws and the general law. While the formal requirements of the law for the transfer of goods from one person to another do not appear to have created particular problems, the growing demand for Aboriginal artwork and its production for commercial purposes has raised some difficulties. These difficulties go much wider than the mere transfer of personal property. Many Aboriginal objects and paintings depict myths and totemic figures which have significance not only to the individual artist but to some or all members of the group to which the artist belongs. Selling or giving away such paintings or sacred objects may involve a serious breach of Aboriginal customary laws yet fulfil the requirements of the general law for transfer of property. Important questions arise as to the protection of Aboriginal artwork and designs.[7] In the present context the issue is whether it is necessary or desirable for the law covering the transfer of personal property to be amended to take into account aspects of Aboriginal customary laws. Amendment to the law could create uncertainty for ordinary transactions and thus cause more difficulties than it resolves. In any event there has been no demonstrated need, nor have any submissions been made to the Commission, for changes to the law to be made in this area. Aboriginal customs of gift giving, the exchange of goods and services and the sale of personal property appear to fit within the normal legal rules. Problems with sale of artefacts and restoration of items of cultural significance need to be addressed specifically, not through the mechanism of any general change to the law of property.

329. Real Property and Aboriginal Customary Laws. The term ‘real property’ includes a wide range of legal and equitable interests generally related to land. It thus includes the land itself and intangible interests such as a right of way (easement) to walk across land owned by another person, or a profit a prendre, that is, a right to harvest natural resources on the land. Questions of hunting, fishing and foraging rights, involves broader issues than the range of fights that can be granted by way of easement or profit a prendre: they are dealt with in Part VII of this Report.

330. Aboriginal Land and Real Property Law. At present, Aborigines who have acquired land individually are free to deal with it in the same manner as any other land-owner.[8] For the same reasons as with personal property, there seem to be no demand for or need to change the law in this regard. Different considerations apply with respect to Aboriginal land fights created by special legislation. As noted, these issues have not been the subject of investigation in this Report.[9]

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Distribution of Property on Death

331. The Significance of Death and its Consequences. Death was a significant event in traditional Aboriginal societies, often involving an elaborate series of rituals. These related not only to the feelings of grief and emotional upset but to the passing of the spirit from the body. According to Aboriginal beliefs each person’s body and spirit had a separate though united existence, and these became disunited on death.[10] Rituals associated with death involved the actual burial, periods of mourning (usually months but sometimes a year or more), and (in some cases at least) an inquest to determine who had been responsible for the death. The rituals involved an attempt to dissociate from the fact of death, and particularly to dissociate or ‘free’ the dead person’s spirit. This dissociation formed the basis of the disposal of a person’s property along with his or her body after death:

... everything that was associated with him is destroyed, avoided or purified. His camp and grave are deserted; his belongings destroyed or broken. Though he will no longer need his body as a means of action, yet in some rites, it is weighted down or tied up or the legs are broken so that he will not be able to wander ... In certain tribes certain mourners must not speak for some time, and in all, the name of the dead may not be mentioned for months and even years ... Food taboos are observed, and of particular interest are those special ones which are adopted because the food was the deceased’s totem or was one of which he was fond.[11]

Customary rules governed who should have custody of sacred objects. Other rules governed the giving of gifts and the fulfilling of kin obligations. It was common for a dead person’s belongings (his spears, tools etc) to be burned or buried with him. The hut or shelter which was his home would similarly be burned or destroyed and the camp would be moved. Not all of a person’s possessions were destroyed. Meggitt asserts that among the Walbiri:

[the] dead man’s goods are later given to the senior mother’s brother of the matriline to share with the other mother’s brothers of that kin and, sometimes, of his community. When a woman dies, her daughters and sisters hand her possessions to her senior mother’s brother to distribute to the women of the matriline.[12]

The change to a more sedentary lifestyle with permanent housing has led to other variations, eg to periods of mourning, and to practices involving destruction of shelters and the movement of the camp. It is now less likely that personal possessions will be destroyed. Since housing has become more permanent, destruction following death is not practiced. However, it is common for houses to be vacated for periods of time during mourning,[13] and even for families not closely related to exchange houses in order to fulfil mourning obligations.

I know at Jigalong when there has been a big pressure on housing the community has decided in a meeting that although it has only been, say, two months, some family is appointed who is quite distant from the deceased — in other words they are not closely related to the deceased and they have been put into that accommodation.[14]

Such informal exchanges of accommodation may create no particular legal difficulties and the Commission has received no evidence of problems. But these practices demonstrate the need for administrative flexibility in the provision of housing.

332. Succession. The Present Law and its Application to Aborigines. In general the way in which a person’s property is distributed on death is the same for both real and personal property, although the formalities of transfer of title may be different. Upon death a person’s property devolves upon a new owner according to a specified pattern provided by the law of succession. This pattern for transferring ownership is for the most part regulated by legislation in each State and Territory and can be divided into 3 categories:[15]

• wills;

• intestacy: and

• family provision or testator’s family maintenance.

As will be seen, the rules of succession are very much directed at the interests of the family, defined in rather narrow terms. This focus on the family, in particular and its narrow formulation, can create problems in the context of Aboriginal customary laws. It is thus necessary to consider the present rules which regulate property distribution on death. Are there traditional Aboriginal mechanisms of property distribution which should be supported or reinforced and which operate without legal recognition?

333. Wills: General Principles. A person is, in general, free to determine what is to be done with his property after he dies. This testamentary freedom is, however, affected in several ways. First, there are certain formal requirements, specified in State and Territory legislation, for a valid will. Generally, a testator must be 18 years of age and the will must be in writing signed by the testator and attested by two witnesses. Secondly, legislation allows the court upon application by certain close family members, to set aside or vary the testator’s will if inadequate provision has been made for those members.[16] What must be considered is whether the law of wills causes problems in the context of the recognition of Aboriginal customary laws, and in particular whether it may interfere with traditional Aboriginal customs of property distribution. If an Aborigine makes a valid will this presumably expresses a personal intention to distribute personal assets in a particular way.[17] The effect may be wholly or partly consistent with traditional affiliations or responsibilities or may reject them altogether, but in any event it is an expression of the right to maintain, or not to maintain, a traditional lifestyle. This, together with the absence of any evidence of problems occurring in this area, supports the view that the basic principle of testamentary freedom as it applies to Aborigines should be maintained.

334. Informal Wills. Problems could conceivably arise, however, over the formal requirements for making a will. In this context the rules relating to informal wills are relevant. Certain wills are deemed to be valid notwithstanding that the formal rules for validity have not been adhered to. This category of ‘privileged wills’ includes, in general terms, the wills of soldiers on military service and sailors at sea.[18] In most jurisdictions a privileged will need not even be in writing.[19] As well as having a specific provision relating to privileged wills, the Wills Act 1936 (SA) has a provision enabling a court to declare a will valid although it does not comply with the formal requirements of the Act.

A document purporting to embody the testamentary intentions of a deceased person shall, notwithstanding that it has not been executed with the formalities required by this Act, be deemed to be a will of the deceased person if the Supreme Court, upon application for admission of the document to probate as the last will of the deceased, is satisfied that there can be no reasonable doubt that the deceased intended the document to constitute his will.[20]

This provision applies generally and not to a specific category of persons. It does, however, require the testator’s intentions to be contained in a document, thus precluding an informal oral will.

335. Informal Wills and Aborigines. The idea of informal or privileged wills may have particular application for present purposes. Aboriginal culture is based on oral tradition and it may be more likely that a traditionally-oriented Aborigine would express a testamentary intention in words rather than in writing. This may provide some justification for the extension of the category of privileged wills. A provision, similar to that existing in South Australia, allowing a will to be valid despite non-compliance with formalities could assist those Aborigines with little or no understanding of the general law relating to wills. However there seems no sufficient justification for confining such a provision for informal wills to Aborigines. Problems with legal forms and technicalities in this are a are not confined or specific to Aborigines, whether they are traditionally-oriented or not. There does not seem to be a case for a ‘special law’ of this kind.[21]

336. Interpretation of Wills. If a traditional Aborigine makes a will, he is likely to understand its language by reference to his own customary laws and traditions, rather than in the sense in which the general law construes the language of wills. For example, a reference to his ‘wife’ might well mean his wife by customary law. Reference to his ‘children’ would no doubt be intended to include children whether or not regarded as illegitimate by the general law. Reference to relatives ought not be restricted to relatives by blood but may be intended to include classificatory relatives.[22] In such circumstances the will should be interpreted against any background of applicable customary laws, so that ambiguities can be resolved in accordance with the (presumed) intention of the testator. Australian courts would probably construe a traditional Aborigine’s will in this way, without the need for legislation. In doing so they would be aided by two existing principles of common law governing the interpretation of wills. In the first place, the court has to discover the intention of the testator by reference to the words used in the will, and can receive evidence of ‘the state of the testator’s family, his property, his friends and acquaintances’.[23] In applying this so-called ‘armchair’ principle, a court could have regard to the state of the testator’s family from his or her point of view. Secondly:

Where the testator belonged to a special group of persons and the words used have a special meaning for that group of persons, the court will give effect to that special meaning ... The question whether the words have acquired a special customary meaning is a question of fact, and evidence is admissible to resolve it ... [T]he use of the special meaning ... applies even where there is no difficulty in giving the words their ordinary sense. Thus it is a true exception to the ‘usual meaning’ rule.[24]

Under this ‘customary meaning’ rule, the fact that the testator belonged to a group of Aborigines who followed Aboriginal customary laws and that under Aboriginal tradition words used in his will had a special meaning, would be relevant in interpreting the will. Although there appears to be no Australian precedent on the question, these principles would prevail over a strict or technical interpretation of words in a will. No legislative provision on the point is, therefore, necessary.

337. Intestacy: General Principles. Where deceased person has not made a valid will or has not by will disposed of all his other property, the rules of intestacy determine how the estate (or the residue of the estate) will be distributed. These rules, set out in State and Territory legislation, prescribe the persons who are entitled to share in the estate and the proportions in which they take. A surviving spouse, though generally accorded the paramount position, may be required to share the property of the estate with the children, or with other relatives of the intestate if there are no children. The next of kin who may qualify for an interest in the estate vary between the different jurisdictions. In New South Wales, South Australia, Queensland, the Australian Capital Territory and the Northern Territory the definition of next of kin is narrower than in Victoria, Western Australia and Tasmania. In all jurisdictions, the ‘next of kin’ are defined exclusively: only relatives within the statutory definition can claim. Hardingham argues that approach by way of the exclusive definition is to be preferred to a more flexible approach as it produces less uncertainty and makes administration easier. In addition ‘it is more fitting that the community rather than very remote relatives, should benefit from intestate estate’.[25] This approach may be suitable within the general Australian society, but a narrow, fixed interpretation of next of kin may be wholly inappropriate in the Aboriginal context. The Aboriginal kinship system may include persons who are not blood relations at all (as distinct from classificatory relations), and yet there may be important obligations and rights existing between the deceased and such a person. Is it appropriate that the formal rules of intestacy with its narrow concepts of family and next of kin should apply or should there be a wider formulation?

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338. Intestacy and Traditional Marriage. An initial premise is that an Aboriginal traditional spouse should be eligible to qualify as a spouse under the relevant legislation. At present the general position is that only a spouse under a Marriage Act marriage would qualify. Aboriginal traditional marriages are only recognised for this purpose in the legislation of the Northern Territory.[26] In other jurisdictions, a traditional spouse would be regarded as a de facto spouse and would be ineligible to claim.[27] The Commission has already recommended that Aboriginal traditional marriages be recognised for the purposes of intestacy legislation.[28]

339. Traditional Distribution. On this basis, the issue is whether a wider range of persons should also be eligible to receive a share of the estate. Only the intestacy legislation in the Western Australia, Northern Territory and Queensland makes any concession to Aboriginal traditions in this regard.

Western Australia. The Aboriginal Affairs Planning Authority Act 1972 (WA) has specific provisions dealing with the estates and property of Aboriginal persons. The provisions have only limited application both because of the narrow definition of ‘Aboriginal person’, and because of the limited scope of the regulations.

Definition of ‘Aboriginal person’. ‘Aboriginal person’ is defined for this purpose as:

a person of Aboriginal descent only if he is also of the full blood descended from the original inhabitants of Australia or more than one fourth of the full blood.[29]

This definition is difficult to apply, and likely to become more so.[30] Only those deceased Aborigines who are deemed to fall within the definition will have their estates distributed in accordance with the method prescribed. Whether this leads to particular hardships is not clear.

Operation of the WA provisions. Under the WA provisions, the estate of a deceased Aborigine is distributed in accordance with the deceased’s will. If there is no will, it automatically vests in the Public Trustee who has full legal and administrative responsibility for the estate regardless of its size. The Public Trustee is required to distribute the estate according to State intestacy law (s 34, 35). But if no person can be ascertained as entitled to an interest according to the normal rules, the Regulations (made pursuant to s 35(1)) prescribe the method of distribution. The Regulations are required to provide as far as practicable ‘for the distribution of the estate in accordance with the Aboriginal customary law as it applied to the deceased at the time of his death’ (s 35(2)). Regulation 9 of the Aboriginal Affairs Planning Authority Act Regulations 1972 provides for a distribution where the deceased had not married in accordance with the laws relating to marriage, but has ‘left surviving him any fem ale person of Aboriginal descent who according to the social structure of the tribe to which he belonged was his wife’. In such a case that person and any children of the marriage are entitled to a share in the estate. If there is more than one such wife or children they are entitled in equal shares. A surviving male person is similarly entitled (although there is no provision for plural husbands). If the Public Trustee is unable to ascertain any Aboriginal person entitled to succeed to the estate within 2 years there is provision for distribution to be made to persons having a moral claim. If no claim is made the balance of the estate vests in the Aboriginal Affairs Planning Authority ‘for the benefit of persons of Aboriginal descent’ (s 35(3)). Apart from the definition of ‘Aboriginal person’ the Western Australian legislation has important limitations. The regulations do not differ markedly from the normal rules of intestacy distribution, except that they take into account a traditional spouse (where there is no ‘legal’ spouse). They do not make a wider category of kin eligible to claim. In fact, reg 9(1)(vii) and (2) seek specifically to exclude this possibility. Regulation 9(2) states:

Where under the provisions of sub-regulation (1) of this regulation, any person of Aboriginal descent (whether male or female) is entitled to the estate or to a share in the estate of a deceased person, then notwithstanding any tribal law or custom to the contrary that person is so entitled for his or her own separate and personal use, and the Public Trustee shall, so far as lies in his power, within the provisions of the Act, manage control and administer that estate or that share in the estate for the personal benefit and advancement of the person of Aboriginal descent entitled thereto.

Nor do the provisions allow for the distribution of the estate on the basis of Aboriginal tradition. They make no allowance for existing or developing Aboriginal ways of property distribution. There are also administrative problems. Most Aboriginal estates are small, yet distribution can take a considerable time because of the need to determine if an Aboriginal person is ‘more than one fourth of the full blood’[31] and to find next of kin.[32]

Northern Territory. The Northern Territory goes much further than any other jurisdiction in Australia in its intestacy legislation as it applies to traditional Aborigines. As well as providing for a traditional spouse or spouses to share in the estate, it establishes a mechanism for a ‘traditional distribution of property’.

Operation of the NT Provisions. Section 71B of the Administration and Probate Act (inserted in 1979) provides:

(1) A person who claims to be entitled to take an interest in an intestate estate of an intestate Aboriginal under the customs and traditions of the community or group to which the intestate Aboriginal belonged or the Public Trustee may apply to the Court for an order under this Division in relation to the intestate estate.

(2) An application under sub-section (1) shall be accompanied by a plan of distribution of the intestate estate prepared in accordance with the traditions of the community or group to which the intestate Aboriginal belonged.[33]

Application for a traditional distribution must be made within 6 months after the date on which administration was granted, although the Court has a discretion to grant extensions of time (s 71C). This discretion is appropriate because there may be extended periods of mourning (perhaps as long as a year) after a person has died, and these would interfere with the preparation of a plan of distribution. In making an order for a traditional distribution the Court is required to take into account the plan of distribution and the traditions of the community or group to which the intestate Aborigine belonged. It must be satisfied, in addition, that the order it makes would, in all the circumstances, be just (s 71E). Property distributed before an application is made under s 71B may be redistributed by the Court (s 71F). It should be noted that there is no provision for a traditional distribution if the deceased Aborigine has made a will. In addition, a traditional distribution may be overridden by a claim for family provision,[34] a claim which may override both the normal rules of intestacy and the special rules for traditional distribution.

Critique of the NT Provisions. While the Northern Territory legislation is in general a commendable model, a number of points should be noted. First, it applies to the estate of an intestate Aborigine[35] only if the intestate ‘has not entered into a marriage that is a valid marriage under the Marriage Act 1961 of the Commonwealth’. This appears to be based on the assumption that an Aboriginal person who is (validly as distinct from invalidly) married under the Marriage Act no longer lives a traditional lifestyle, or adheres to traditional ways. This takes no account of the reality of why a Marriage Act marriage may have taken place. For example, an Aborigine brought up on a mission may have entered into a traditional marriage which was later sanctioned by a church marriage, a procedure adopted for all persons living on the mission. There is no justification for automatic exclusion from these provisions based on Marriage Act marriage.

Queensland. The Community Services (Aborigines) Act 1984 s 75 provides for the administration of Aborigines’ estates. It requires the Under Secretary of the Department of Community Services to administer the estate of an Aborigine who is missing or who dies without appointing an executor (or where the executor is incapable of executing the will). The Under Secretary may renounce these rights in favour of the Public Trustee. If an Aborigine has not made a will and if it is impracticable to determine the persons who should succeed to the estate, the Under Secretary is empowered to determine the person or persons who should succeed. This could have the effect of allowing a traditional distribution, but there is no guarantee of this: the matter is at the discretion of the Under Secretary.

340. Traditional Distribution: the Preferred Approach. It is recommended that there should be provision for an intestate Aboriginal estate to be distributed in accordance with the traditions or customary laws of the deceased’s community. This could be implemented in a variety of ways. There could be specific provision allowing application for a traditional distribution as in the Northern Territory, or there could be a discretion in the Court or a public official with responsibility for intestate estates to include other persons in the distribution of the intestate estate, which would in effect result in a traditional distribution. The Commission favours the former approach, along the lines of the Northern Territory provision (although without any exclusion of Aborigines married under the general law). The initiative should come from those concerned themselves to seek the alternative distribution, by application. Time limits for application should be flexible enough to take into account long periods of mourning in many Aboriginal communities.

341. Family Provision (Testator’s Family Maintenance). In all States and Territories there is legislation enabling a claim to be made for further provision out of the deceased’s estate, if the will makes inadequate provision for the proper maintenance and support of dependants. Application may also be made if the rules of intestacy fail to make adequate provision. The legislation specifies the persons who are eligible to apply: these include surviving spouses, children (regardless of age), and in some jurisdictions and in certain circumstances, surviving former spouses. Only in the Northern Territory is there specific recognition of Aboriginal traditional marriage for this purpose. In the previous chapter it was recommended that a surviving traditional spouse should be eligible to make a claim for family provision.[36] In addition, there are good reasons for extending the range of eligible persons, especially where the extended family and kin network may result in a person having a large number of dependants, or where the kinship system imposes certain family-like obligations upon that person. Provision for a traditional distribution of an Aboriginal estate may not be adequate to deal with this situation, especially if an Aborigine has made a will. Where an Aborigine has made a will or if the normal rules of intestacy are being applied, the range of persons eligible to make a claim for family provision should be broadened. This could be done in a number of ways. The persons able to claim could be specified, but this would be difficult to do accurately or exhaustively, taking into account the variety of circumstances and differing kinship rules and structures in different communities. The better course is be to give the Court a discretion, on application, to include dependants determined according to relationships under the customary laws and traditions of the deceased’s group or community.[37]

342. Wills. Intestacy and Family Provision: Priority of Claims. These recommendations for extending the law relating to the distribution of deceased estates raise important questions of priorities. At present an application for family provision may override a will, or the normal intestacy rules. Should provision for a traditional distribution of an Aboriginal estate prevail over other claims, or should a claim for family provision still be available? Should an application for traditional distribution be capable of overriding a will? Competing claims for priority are important both in terms of general policy and to potential beneficiaries.

Wills and Traditional Distribution. One submission to the Commission, by Mr W Clifford, formerly Director of the Australian Institute of Criminology, argued that claims to traditional distribution should take priority over a will:

I would question whether traditional distribution should not prevail over the clear terms of a will. If we are really serious about recognising custom, then we must recognise it would be impossible in customary law to exclude such customary claims.[38]

If an Aboriginal person makes a will this is an indication of the desire to distribute property in a particular manner, which may wholly or partly reflect traditional ways, but must in any event be assumed to reflect individual priorities. The Commission’s Terms of Reference require it to take into account the freedom of Aborigines to pursue the lifestyle of their choice. The view of the majority of the Commission is that if a traditional Aborigine wishes to make a will (at present few do) he or she should remain free to do so in the ordinary way, subject to any claim for family provision, and that an application for traditional distribution should not override a will. Traditional elements may still be taken into account, to a certain extent, through provision for an extended class of claimants for family provision, or through the interpretation of the will by reference to relevant Aboriginal customary laws.[39] However, one member of the Commission (Professor MR Chesterman) agrees with the argument put by Mr Clifford. In his view the distribution of a deceased persons property in accordance with Aboriginal custom should be given precedence despite the existence of a will.

Wills and Family Provision. Since this testamentary freedom is an aspect of the general law of wills, it is subject to restrictions applying to that law, and in particular the possibility of a claim for family provision. The category of dependants who may make such a claim should include, as well as traditional wives, those relations under relevant Aboriginal customary laws who ought appropriately to be able to bring such claims.[40]

Family Provision and Traditional Distribution. If some mechanism for traditional distribution of Aboriginal estates is established the question arises whether it should be subject to a claim for family provision. It may well be that a traditional distribution could exclude a wife or other person eligible to claim family provision. In practice, it is unlikely that after a consensus has been reached with respect to a traditional distribution, an eligible individual would claim family provision, but the is sue is whether such a claim should be available in principle. On balance, a majority of the Commission take the view that a claim for family provision should be able to override a traditional distribution, for two reasons. First, family provision is a needs-based claim made by a close relative. It is undesirable to exclude the possibility of claims based on need in such cases. Secondly, in practice the problem will only arise in the context of larger estates and thus, despite the possible extension of traditional attitudes, practices and expectations, it will involve a substantial non-traditional element. In such a context claims by close relatives based on need are correspondingly stronger. However, such claims should only succeed where the need is clearly demonstrated and where there are no other ways of meeting the need. The court would have a discretion in making an order both for traditional distribution and for family provision, and should use it in this way.[41] However, one member of the Commission (Professor MR Chesterman) believes that an application for family provision should not be considered if an application for traditional distribution has been made. The decision to make an application for traditional distribution would mean that all relevant interests from an Aboriginal perspective had been considered and this should not be able to be set aside by an application for family provision.

343. Machinery for Traditional Distribution. Machinery for traditional distribution could be established to allow applications for an order for a traditional distribution to be made by any person claiming to be interested in a traditional distribution of the property of a deceased intestate Aborigine. Such an application would be made to the court having jurisdiction in the State or Territory over the deceased’s estate. Any order of the court would be substituted for the ordinary provisions for distribution on intestacy. It is true that there is relatively little evidence of problems arising in this area so far. For example, there has been no application for a traditional distribution since the Northern Territory legislation came into force.[42] In the great majority of cases, traditional estates are dealt with informally without any legal action or intervention at all (eg as ‘small estates’). On the other hand it cannot be assumed that this situation will remain unchanged, or that the absence of evidence of significant difficulties in this area means that no difficulties will in fact arise. Legislation which takes into account Aboriginal customary laws and traditions in the way suggested is desirable in principle, even if seldom used. Whether these principles should be endorsed by Commonwealth, or by State or Territory, legislation is another question. Parts III-VII of this Report are concerned with the principles which should be applied in dealing with matters involving Aboriginal customary laws, leaving federal-State questions to be discussed in Part VIII.

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[1] See para 280-94.

[2] Most property transactions involve a transfer by sale or gift inter vivos, that is, from one living person to another. In addition to voluntary transfers, property may change hands compulsorily as a result, for example, of bankruptcy or the execution of a court order. It has been pointed out that the distinction between distribution of property inter vivos and on death is of ‘questionable utility’, especially for comparative purposes: JL Comaroff and S Roberts, Rules and Processes, Uni of Chicago Press, London, 1981, 176. For present purposes, the distinction is adopted because it reflects different degrees and kinds of control exercised by the general law over dispositions of property.

[3] RM Berndt & CH Berndt, The World of the First Australians, 4th rev edn, Rigby, Adelaide, 1985,117.

[4] R Broome, Aboriginal Australians, George Allen & Unwin, Sydney, 1982, 16-17.

[5] See eg K Ackerman, ‘Material Culture and Trade in the Kimberleys Today’ in RM Berndt and CH Berndt (ed) Aborigines of the West, Uni of WA Press, Perth, 1980, 243.

[6] Berndt & Berndt (1985) 122-134.

[7] For reasons explained in para 213, this issue is not dealt with in this Report.

[8] An exception to this would be an Aboriginal holder of a pastoral lease in the Northern Territory. The land may be the subject of a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which could limit the individual holders rights to deal with it.

[9] As explained in ch 11, issues of land rights have been treated as outside the scope of this Reference, though in some situations these may involve a recognition of Aboriginal customary laws. See para 66-7, 77-8, 212-13.

[10] K Maddock, The Australian Aborigines, 2nd edn, Penguin, Ringwood, 1982, 158.

[11] AP Elkin, The Australian Aborigines, rev edn, Angus & Robertson, Sydney, 1979, 342-3.

[12] MJ Meggitt, Desert People, Angus & Robertson, Sydney, 1962, 321. It is possible that this was a more recent development, brought about by people acquiring more possessions. And see A Nelson Napururla and B Naburula, Submission 386 (7 October 1985) 2. See also ALRC, ACL Field Report 9, Northern Queensland (July 1984) 9 for conflicting opinions.

[13] id, 5. See para 460.

[14] R Johnston, Transcript of Public Hearings, Strelley (24 March 1981) 423; D Peinkinna, Transcript Aurukun (30 April 1981) 2062. On housing issues see eg M Heppell and J Wrigley, Blackout in Alice, ANU Press, Canberra 1981; H Dagmar, Aborigines and Poverty, Nijmegen, 1978, ch 6; House of Representatives Standing Committee on Aboriginal Affairs, Strategies to Help Overcome the Problems of Aboriginal Town Camps, AGPS Canberra, 1982; HC Coombs, MM Brandl, WE Snowdon, A Certain Heritage, CRES, Canberra, 1983, 246-253, 393-4.

[15] The distribution of small estates could be regarded as a fourth category. In some Australian jurisdictions there are simplified administrative practices for the distribution of small estates. These can be informally distributed; this would allow, for example in accordance with Aboriginal tradition where relevant.

[16] See para 341.

[17] The number of Aborigines who make wills is very small, especially in more remote communities.

[18] An exception regarded by most commentators as an anomaly.

[19] eg Wills Act 1936 (SA) s 11.

[20] s 12(2). For a general discussion of this provision see SNL Palk, ‘Informal Wills: From Soldiers to Citizens’ (1976) 5 Adel L Rev 382.

[21] For the non-recognition of traditional marriage for the purposes of revocation of wills see para 291 n 57.

[22] This might depend on whether the will was professionally prepared and, if so, what attempt had been made by the solicitor taking instructions to understand the real intent of the testator. See further para 546.

[23] IJ Hardingham MA Neave & HAJ Ford, Wills and Intestacy, Law Book Co, Sydney, 1983, 267-8, citing Day v Collins [1925] NZLR 280, where a reference to the testator’s wife was held to mean his de facto wife rather than a long deserted de jure wife.

[24] Hardingham, Neave and Ford, 270 citing Shore v Wilson (1842) 9 CI & Fin 355.

[25] IJ Hardingham, Intestate Succession, Law Book Co, Sydney, 1978, 23.

[26] Traditional marriages may receive recognition in Western Australia and Queensland under special legislation for the distribution of estates of deceased Aborigines.

[27] Formally, South Australia is an exception: Administration and Probate Act 1919 (SA) s 4 defines spouse as including a putative spouse. The Family Relationships Act 1975 (SA) establishes the status of ‘putative spouses’ (narrowly defined).

[28] See para 291-4.

[29] Aboriginal Affairs Planning Authority Act 1972 (WA) s 33.

[30] See para 88-95 where the definitional question is discussed.

[31] This determines whether the Public Trustee has responsibility for the estate although in practice the Public Trustee handles other Aboriginal estates.

[32] This is a more general problem. Complaints have also been made about the delays in ‘processing of Aboriginal intestate estates by the public trustee in the NT’, due in part to inadequate Aboriginal population records: P Ditton, Submission 465 (1 January 1985).

[33] According to the Northern Territory Public Trustee, no application pursuant to s 71B has yet been made: Information supplied 25 October 1985.

[34] Family Provision Act (NT) s 8.

[35] The term ‘Aborigine’ is defined, more flexibly and generally than in the WA legislation, to mean ‘a person who is a member of the Aboriginal race of Australia’ (s 6).

[36] See paras 293-4.

[37] Under this provision a person related by blood, kinship or marriage to the deceased person should be able to apply for an order for family provision if that person was at the time of the deceased’s death entitled, in accordance with the customary laws of the Aboriginal community to which the deceased belonged, to expect support (including material support) from the deceased person.

[38] W Clifford, Submission 356 (12 October 1982).

[39] cf the situation which faced Barker J in Rogers v Rogers and Tatana, unreported, NZ High Court (18November 1982). The deceased, a Maori woman, made a will leaving a small-holding and shares in another piece of Maori land to her grand-nephew, ‘adopted in accordance with Maori custom and ... regarded as her mokopuna’. The deceased’s only child applied for a family protection order, relying in part on Maori custom. Barker J held that he was entitled to take Maori customs in relation to land and adoption into account, and divided the land between the 2 claimants, with the adopted grand-nephew retaining the small-holding. In this case the power to make a will was at least as consistent with Maori custom as the right to claim family possession.

[40] See para 341.

[41] cf Rogers v Rogers and Tatana (n 39).

[42] See n 33.

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