Acknowledgement of Country

Rightly the Acknowledgement of Country is how we start many gatherings, including formal events. Why do we not do it in our courts? We should. The land our courts meet on is the land of traditional owners and as such they should be respected and recognised.

Along with Welcome to Country ceremonies “Acknowledgement of Country is a fundamental first step in developing a positive and meaningful relationship with the Indigenous community. It demonstrates respect for Indigenous people and acknowledges the spiritual, physical and cultural connection their ancestors have with their “country” as the first people of the land,” argues Ilona Nicola.1

Our community must uphold the obligations set out in Article 15 of the United Nations Declaration on the Rights of Indigenous Peoples. Article 15(2) provides; “States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.”

And importantly, in the context of all our court buildings located on land of the traditional owners, Article 25 of the Declaration says that “Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.”

Starting our court days with an Acknowledgement to Country should not be a matter of controversy. After all the court system in Australia is a product of a colonial structure and it is not that long ago courts insisted on recognising the British sovereign in their formal openings and closings.

Acknowledgment of First Nations peoples is practised in many courts in Canada, including the highest court, the Supreme Court. It is also the case that at the commencement of submissions lawyers will also acknowledge the link to land on which the court meets. As James Gunvaldsen-Klaassen, a lawyer who acts for many Indigenous groups in Canada says of the importance of Acknowledgement of Indigenous link to land where courts sit; “As predominantly settler organizations, it is incumbent on us to name and address systemic inequities and biases that disproportionately harm Indigenous peoples and communities,” he said. “It is essential to dismantle the white colonial privilege that exists within the legal profession and the administration of justice in Canada. This work is critical to building a more accessible justice system – one that is free of arbitrary barriers created by prejudice and white privilege, and trusted by all people in Canada.” Replace Canada with Australia and the point is equally valid.

An Acknowledgment of Country in our courts might also focus us on making much greater efforts to end the systemic discrimination which Indigenous Australians suffer daily as they are jailed in obscene numbers or psychologically abused in youth detention facilities.

We should also, in Tasmania, recognise the unique disadvantage of Aboriginal Tasmanians through the creation of a specialist court. Again Victoria leads the way in this regard. The Koori Court has been very successful since its creation in 2002 in ensuring therapeutic justice for offenders which ensures strong participation by the communities in which they live. In Queensland the Murri Court plays a similar role and in New South Wales an Indigenous court process existed in the youth justice area. In South Australia the Nunga Court system has been established.

In Tasmania Aboriginal persons who are defendants in the criminal justice system are simply ‘mainstreamed’ which is completely inappropriate in the 21st century where there is global recognition that Indigenous groups must have control, in part at least, of the justice system as it applies to them.
While Acknowledgment of Country should be an important component of court proceedings across Australia in Tasmania it is particularly so given the genocide that occurred her in the name of British law and administration two hundred years ago.

As Tom Calma, former Aboriginal and Torres Strait Islander Social Justice Commissioner noted; “It cannot be repeated often enough that a legal system must reflect the people it serves if it is to gain their confidence. And Indigenous Australians want greater confidence in the legal system. We want to know that in its day to day operation, the legal system understands and respects our cultures, our heritage, and our histories. And that it is constructed in a way that is capable of providing justice for our people and communities.”2

A modest but critical contribution would be our courts ensuring Acknowledgement of Country each time they sit.

Greg Barnes SC
Republic Chambers (Tas)

1. Ilona Nicola, ‘Acknowledgment of Country: Tokenistic or Meaningful?’ June 19 2012, RightNow.org.au https://rightnow.org.au/opinion/acknowledgment-of-country-tokenistic-or-meaningful/
2. T Calma, ‘The Integration of Customary Law into the Australian Legal System’ (2007) 25(1) Law in Context 74