This week is NAIDOC (National Aboriginal and Islanders Day Observance Committee) week; its theme is Songlines: The Living Narrative of our Nation.
The Dreamtime describes a time when the earth, people and animals were created by indigenous ancestral spiritual beings. Dreaming tracks sometimes called ‘Songlines’ crisscross Australia and trace the journeys of these ancestral spirits. These Songlines are recorded in traditional songs, stories, dance and art, celebrating Aboriginal and Torres Strait Islander Peoples connection to land and sea. They carry significant spiritual and cultural connection to knowledge, customs, ceremony and Lore of many Aboriginal nations and Torres Strait Islander language groups.
Songlines have been passed down for thousands of years and are central to the existence of Aboriginal and Torres Strait Islander people. They are imperative to the preservation of Aboriginal and Torres Strait Islander cultural practices.
In failing to recognize the different kinship patterns Australian Succession law is not always culturally appropriate to Aboriginal & Torres Strait Islanders. Similarly the passing of material goods, burials, guardianship of children and the importance that passing customary secret laws are not adequately addressed by the intestacy laws currently operating in most Australian jurisdictions.
In the wider community 45% of Australians have a valid Will yet the majority of Aboriginal and Torres Strait Islander people die intestate. However not all states have legislation dealing with Aboriginal & Torres Strait Island customary inheritance of intestate estates. Non indigenous kinship takes a linear focus on blood lines whereas most (but not all) Aboriginal & Torres Strait Islanders view kinship as a circle with property going to close family members.
There are also issues about disputes arising as a result of making a Will, including where a Will should be kept and what happens if it is lost. In making a Will and appointing an executor, (making sure that the family know that person has been entrusted by the Will maker to make decisions regarding the estate) many of these problems can be addressed.
Intestacy laws place a strict order in which the assets are required to be distributed (spouse and de facto partners first, then children, parents, brothers and sisters, grandparents, aunts and uncles) it is usually not in accordance with the Aboriginal views and may not properly account for Aboriginal kinships structures.
There is a concern about the loss of secret knowledge and the possible use of secret and half-secret trusts as a means of saving the knowledge from extinction. However, this should be seen as a backup only, to be used where all ordinary ways of passing on the customary knowledge or objects had been exhausted.
As with the wider community an increase in Aboriginal & Torres Strait Islanders making Wills needs to be promoted. Drafting wills using testamentary trusts to protect customary law obligations along with general property rights including secret and half-secret trusts (where either the existence or the substance of the trust is undisclosed in the will, but is known to the trustee), ensuring that customary law obligations are recognised and given legal force by the common law.