Within – the tribe were clans and family groupings, which were responsible for their own areas; looked after the land and the well being of their people.  “Each tribe had its own boundary, which was well known, and none went to hunt, etc., on another’s property without an invitation, unless they knew they would be welcome, and sent special messengers to announce their arrival.  The Turrbal or Brisbane tribe owned the country as far north as the North Pine River, south to the Logan River, and inland to Moggill Creek.  This tribe all spoke the same language, but, of course, was divided up into different lots, who belonged some to North Pine, some to Brisbane, and so on.  These lots had their own little boundaries.  Though the land belonged to the whole tribe, the headmen often spoke of it as theirs.  The tribe in general owned the animals and birds on the ground, also roots and nests, but certain men and women owned different fruit or flower-trees and shrubs.” (Constance Petrie, Tom Petrie’s Reminiscences of early Queensland 1904, p. 1 1 7).

The Turrbal people were fishing people.  The Brisbane River was an essential source of livelihood for the Turrbal people.  Creeks and swamps around Brisbane were vital food sources.  Tom Petrie recalled in his writing in 1901 that, as a young boy he used to catch tortoises with Turrbal children in the swamp at New Farm – which meant “a place of the land tortoise”.  Binkenba was the Turrbal name for New Farm.  Kurilpa was the Turrbal name for West End – which meant “a place for rats”.

Many clans existed within the Turrbal nation, such as the Duke of York clan, the Coorparoo clan… etc.  Many lived along the Brisbane River and its associated waterways, particularly before European settlement.  The Brisbane River supported the livelihoods and lifestyles of the Turrbal people for fishing and other spiritual and recreational activities.  Mrs. Connie Isaacs, the oldest surviving member of the Turrbal people, has knowledge of the cultural significance of the Brisbane River to her people.  Mrs. Isaacs is the great great great granddaughter of the Duke of York the highly respected tribal elder who presided over the clan from the 1820s to 1850s.  She is over eighty years of age.

Customary Law

The landmark decision of the High Court of Australia in Mabo v The State of Queensland (1992) 175 CLR 1 has undoubtedly brought the issue of Aboriginal Customary Law to the fore.

It is fair to say that, prior to the handing down of this decision in 1992, customary law was seen as only relevant in Aboriginal communities in the outback and remote areas. In many respects, the registration of the Turrbal native title claim over Brisbane in 1999 – Australia’s third largest city, has debunked the myth that customary law only existed in the outback and remote communities. So, what exactly is this concept termed customary law?

Customary law is a set of beliefs, customs and practices that emanates from Dreamtime. It is a pre-existing system of laws, traditions and practices which predates European settlement in Australia. Contrary to popular views, customary law is not uniform in Australia, yet similarities exist. It can vary from tribe to tribe, clan to clan and from family groups to family groups. It is an intricate system of laws that regulate the Aboriginal societies in Australia.

QUESTION: How does customary law apply in modern-day Australia?

ANSWER: Customary law is not universal. Its nature and content is determined by the sets of customs and beliefs of each tribe and/or clan. It is a pre-existing system of laws and it is unique. Customary law is independent of the Australian common law, and has been for thousands of years. Customary law, whether in modern-day Australia or not, remains the jurisdiction of the Traditional Owner of a particular area. Its application in modern-day Australia can only be understood when one understands fully the complexities and structures of the Aboriginal society under examination. For example, issues such as Right to Speak for Country, permission to Cross Border, Traditional Blessings, Entry to Places of Cultural Significance … etc are paramount in many Aboriginal societies, yet these very issues are totally misunderstood by many non-Aboriginal Australians

In some respects, native title is where customary law and common law intersect. Native Title law will continue to evolve over time as more cases are settled through the courts. Native title is neither customary law nor common law.

For more information on this issue please have a look at Yari a quarterly publication that deals with customary law, native title, cultural heritage/protocols, language, environmental education, and general community issues.