Updates and background for this project (Digest)
9.1 There are many different types of Indigenous communities in Australia: rural, urban, traditional and historical communities, including groups that have gathered together from different regions. Indigenous people may continue to live traditional lifestyles, or they may be involved in various ways and to various extents in non-Indigenous lifestyles. This makes it difficult to formulate a general scheme that would be inclusive of all the diversity in Indigenous communities throughout Australia.
INDIGENOUS KINSHIP
9.2 In general in Australia, the distribution of property on intestacy is based on a relatively narrow range of family relationships that are reflective of English, or at least Western, law and society. It may, therefore, be inappropriate to apply the current general intestacy rules to members of Indigenous communities, who may have a broader concept of family relationships.1 For example, the Australian Law Reform Commission has stated that, unless the particular nature of Aboriginal family relationships was recognised in the intestacy provisions, the application of the general principles, with their fixed lists of next of kin, would remain inappropriate. The Commission noted that, “[t]he 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”.2 Other commentators have observed:
It is very important to note that Aboriginal kinship structures are very different from Western kinship structures and that customary law obligations flow from those kinship relationships. This applies whether or not the Aboriginal people seem to have traditional lifestyles.3
9.3 It has also been noted that “the extreme emphasis on lineal, bloodline relationships in the common law contrast with the acceptance of collateral, adopted and maritally linked relatives in Aboriginal customary law”.4 Examples of such differences include:
- willingness to recognise kinship without blood relationship, including adoption and by marriage;
- equivalence of some relatives (eg all sisters’ sons may be regarded as brothers, while opposite-sex siblings may be regarded as cousins);
- non-lineal view of time - kin names like ‘father’ may be repeated at what non-Aborigines would regard as different generational levels. This reflects a more circular view of time with regards to kinship.5
9.4 The possibility has been raised that the relationships specified in the legislation could, for the purposes of that legislation, be interpreted more broadly than they would be at common law. As Justice McPherson said:
I am conscious of the fact that the designation of Aboriginal relationships such as mother, brother, sister and so on, may not necessarily be the same as those relationships in western society, which is evidently the criterion used as the basis for distribution on intestacy under the Succession Act. It is possible (I say no more) that for succession purposes relationships are capable in some circumstances of being understood in ways that are broader than would ordinarily be the case at common law…6
CURRENT PROVISIONS
9.5 Only a few jurisdictions make provision for Indigenous persons in relation to intestacy. Broadly, these provisions fall into two categories. First, those that recognise Indigenous customary marriages for the purpose of distribution according to the general intestacy rules. Secondly, those that provide for a separate or additional distribution regime for Indigenous people in certain circumstances.
Recognition of customary marriage
Qld Community Services (Aborigines) Act 1984 s 173; Community Services (Torres Strait) Act 1984 s 183
ACT
NSW
NT s 6(1), s 6(4), s 67A
SA
Tas
Vic
WA Aboriginal Affairs Planning Authority Act 1972 s 35; Aboriginal Affairs Planning Authority Act Regulations 1972 r 9
NZ
Eng
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9.6 At its most basic level, the recognition of Indigenous customary marriages for the purposes of intestacy is simply a means of bringing Indigenous persons into the general scheme for distribution on intestacy by including customary marriage in the definition of spouse.
9.7 In the Northern Territory and Western Australia, Aboriginal customary marriages are recognised in intestacy. Such recognition will only have effect in intestacy if the couple have not entered into a valid marriage under the Marriage Act 1961 (Cth). This may not be a great obstacle, as the Australian Law Reform Commission recorded that it had been estimated that at least ninety per cent of marriages between “traditional Aborigines” were not made according to the requirements of the Commonwealth Act.7 Older Aboriginal Persons may, however, be caught by this restriction as “a Marriage Act marriage is one of the few things that Aborigines living on reserves run by missions did have performed in a non-Aboriginal manner”.8 Western Australia recognises some Aboriginal marriages for the purposes of intestacy, holding that a spouse may be ascertained and entitled, when the intestate is survived by a person of the opposite sex who, “according to the social structure of the tribe to which[s]he belonged” is the spouse of the deceased. The intestate’s children and parents may also be determined in the same manner.9
9.8 A provision recognising Indigenous customary marriages was included in proposed intestacy provisions published by the Queensland Law Reform Commission in 1992:
Where a relationship between two persons is recognised by Aboriginal or Torres Strait Island customary law that relationship is recognised for the purposes of this Part unless recognition of the relationship would confer rights which would not be conferred by customary law.10
However, this provision was not included in the Commission’s final report.11
Polygamy
9.9 While Aboriginal intestates may be survived by a spouse and a de facto partner, the situation has also been raised of the deceased having been in a polygamous customary marriage with more than one spouse. Despite the decline of polygamy, especially in urban Aboriginal communities, Dr Sutton observed that, “…it is not uncommon for second and third marriages to be concealed from authorities where those authorities disapprove of polygyny…At present one must assume that polygyny will be around for an indefinite future, even if it continues to decline in gross terms.”12 The, albeit declining, presence of polygamous customary marriage between Aboriginal people was identified by the Australian Law Reform Commission in its report into the recognition of Aboriginal customary laws.13
9.10 The Northern Territory specifically provides for Aboriginal people leaving more than one spouse. The spouse’s entitlement, including the value of personal chattels, will be divided equally amongst the spouses.14 This position is similar to the general provisions in South Australia and New Zealand, which divide the spouse’s entitlement equally between the spouse and the de facto regardless of the length of their relationships or their living arrangements.15 The right of a spouse or de facto to appropriate the matrimonial home, however, does not exist in the Northern Territory.
The relevance of de facto relationships provisions
9.11 Even where a marriage between two Aboriginal people is not recognised under Commonwealth law, the requirements of a de facto relationship may have been satisfied. In such a case the cohabitation, rather than the marriage, is recognised.16 Distribution can then be made according to the general provisions.
Additional/separate distribution regimes
Qld Community Services (Aborigines) Act 1984 s 173; Community Services (Torres Strait) Act 1984 s 183
ACT
NSW
NT s 6(1), s 6(4), s 71-71F
SA
Tas
Vic
WA Aboriginal Affairs Planning Authority Act 1972 s 35, Aboriginal Affairs Planning Authority Act Regulations 1972 reg 9
NZ Te Ture Whenua Maori Act 1993 s 109-110
Eng
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9.12 Only three Australian jurisdictions make additional or separate provisions for the distribution of estates of intestate Indigenous persons. The provisions in two of these jurisdictions appear to draw on attitudes and approaches that are more appropriate to the old Aboriginal protection systems. One commentator has noted that the effect of the Western Australian and Queensland regimes has been to remove control over intestate estates from Indigenous next of kin (as administrators) and give control to government officials.17 Such a removal of control from Indigenous people in the management of their families’ affairs is inappropriate.
Western Australia
9.13 In Western Australia, the property of all people of Aboriginal descent who die intestate vests in the Public Trustee to be distributed according to the State’s intestacy rules. If those entitled under the general regime cannot be found, distribution is to be made by reference to the Regulations, which, according to the Act, should, to the extent that it is practicable, “provide 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”.18 However, the current provisions recognising customary law really only acknowledge “tribal marriage” and then provide for a more limited range of relatives who are entitled than even the regime that applies to the general community allows.19 There is no consideration of a category of customary next of kin any wider than the spouse, children and parents of the intestate.20
9.14 If no valid claim is made within two years of the intestate’s death provision is made for beneficial distribution to a person with a moral claim, or for the estate to be held in trust by the Aboriginal Affairs Planning Authority to be “used for the benefit of persons of Aboriginal descent”.21 The Act defines an Aboriginal person 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”.22 This definition does not accord with the generally accepted definitions of Aboriginality contained in other legislation and given the small size of the estates of many Aboriginal intestates, such a requirement may prove relatively costly as the blood descent of each claimant must be determined.23 The Aboriginal person must also not have been married under the Marriage Act 1961 (Cth)24 which must further limit the application of the provisions.
Queensland
9.15 Queensland has established separate regimes upon intestacy for both Aboriginal people and Torres Strait Islanders. If an Aboriginal or Torres Strait Islander dies intestate and it proves “impracticable to ascertain the person or persons entitled in law to succeed to the estate … or any part of it” the chief executive of the Aboriginal and Islander Affairs Corporation may determine “which person or persons shall be entitled to so succeed or whether any person is so entitled”.25 This distribution is entirely at the chief executive’s discretion and, although he or she may have reference to Indigenous customary law, the distribution is not required to accord with any customary practices.
9.16 If the chief executive is unable to determine that any person is entitled to succeed to the estate or a part of the estate, that property shall “vest in the chief executive who shall apply the moneys or the proceeds of the sale of any property (less the expenses (if any) of such sale) for the benefit of [Aborigines/Islanders] generally” under the schemes whereby the chief executive may grant aid to Indigenous persons who apply for it on such terms as the chief executive may think fit.26
Northern Territory
9.17 The Northern Territory provides for a separate regime for distribution of the intestate estate of an Indigenous person, but only in relation to an intestate Indigenous person who “has not entered into a marriage that is a valid marriage under the Marriage Act 1961 of the Commonwealth”.27 This requirement may prove to be too limiting in many cases, especially where marriage under the Marriage Act 1961 (Cth) may be entirely incidental to other relationships of kinship of which some individuals may be a part.
9.18 A person who claims to be entitled to take an interest in an intestate Aboriginal Person’s estate under the customs and traditions of the community or group to which the Aboriginal intestate belonged or a professional personal representative (like the Public Trustee) may apply to the Court for an order for distribution of the estate. Such an application must 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 Aboriginal intestate belonged.28
9.19 An example of the application of such a plan can be found in a recent judgment of the Northern Territory Supreme Court:
[3] The estate comprises cash only in the hands of the Public Trustee amounting to approximately $28,700.
[4] The affidavit evidence of each of three deponents, senior members of clan groups making out the Jawoyn people, asserts that she or he is qualified and authorised by Jawoyn tradition to say who is entitled to take an interest in the estate under the customs and traditions of the Jawoyn. That evidence is consistent in showing that the intestate was the last member of another clan, that he was “grown up” by the late Gerry Mumbin who has three living children, Kevin, Kathleen and Lisa. Those children, in classificatory terms, were the “wives” and “brother-in-law” of the intestate. As the deceased had no children, the Mumbin siblings were his close family. The evidence also shows that Kevin, Kathleen and Lisa Mumbin succeeded to the non Aboriginal estate of the intestate in accordance with the customs and traditions of the Jawoyn and are entitled in equal shares. A letter to the Public Trustee from the Executive Director of the Jawoyn Association confirms that evidence. ...
[6] The plan of distribution proposes that the estate be divided into three parts (I assume equal parts) and that one of each part be distributed to Kevin, Kathleen and Lisa Mumbin.
[7] I am satisfied that in all the circumstances it would be just to order that the estate be distributed in accordance with the plan and order accordingly.29
9.20 An application must be made within six months after administration of the intestate estate has been granted. This time may, however, be extended by the Court whether or not the six months has expired and subject to whatever, if any, conditions the Court thinks fit. No application will be allowed after the intestate estate has been lawfully and fully distributed.30
9.21 The Court may order that the intestate estate (or in part thereof) be distributed in a specified manner. In making the order for distribution the Court must take into account the traditions of the community or group to which the intestate belonged and the plan that accompanied the application. In any event, the Court will not make any order for distribution “unless it is satisfied that to make the order would, in all the circumstances, be just”.31
9.22 The Court may distribute any or all of the intestate Aboriginal person’s estate, including that which has been distributed by the administrator before the administrator has had notice of an above application. Where the administrator has made a distribution, before or after receiving notice of an application, the Court will not disturb such a distribution as long as it was “made for the purposes of providing for the maintenance, education or advancement in life of a person who was totally or partially dependent on the intestate Aboriginal [person] immediately before his or her death”.32
9.23 As with the general provisions, the debts and liabilities of the estate, the funeral and testamentary expenses, the costs and expenses of administering the estate and the estate duties, succession duties and other duties and fees payable in relation to the estate are not included in the intestate estate of an intestate Aboriginal person.33
New Zealand
9.24 New Zealand has established a scheme of entitlement in relation to Maori freehold land on intestacy. The scheme will apply when the owner of any beneficial interest in Maori freehold land dies intestate. Distribution is made per stirpes and will go firstly to any of the intestate’s issue who survive him or her. If there are none, then the land will go to the intestate’s siblings or the issue of these siblings, if a sibling has not survived the intestate, but has left issue. Should no such relatives be found the chain of title shall be followed and priority granted to “the issue, living at the deceased’s death, of the person nearest in the chain of title to the deceased who has issue living at the deceased’s death.”34
9.25 Should a surviving spouse be left by the intestate, that spouse is entitled to a life interest, or until remarriage, in the intestate’s interest in the land unless a separation order or separation agreement is in force in respect of the marriage between the surviving spouse and the intestate. The spouse is entitled to surrender his or her entitlement.35
9.26 Aside from the scheme of entitlement to Maori freehold land all other property devolves according to the general scheme of distribution on intestacy.36
A WAY FORWARD?
9.27 Despite the distinctive and important role that kinship and marriage plays in Aboriginal society, the Queensland Law Reform Commission, in 1993, recommended against the recognition of customary rules:
Until extensive work has been done to bring knowledge of customary law clearly into focus and widespread consultation has been initiated and brought to fruition, the Commission is of the view that it could be counter-productive, even misleading, to introduce legislation at the present time purporting to affect customary law, or to recognise it, in the narrow context of intestacy rules.37
9.28 The model in operation in the Northern Territory may be an appropriate model. Prue Vines has usefully suggested that:
The first step in legislation should be to extend the kinship group entitled on intestacy to one matching customary law patterns. If the requirement not to have been in a Marriage Act marriage is removed, the Northern Territory model is the best one on offer because it allows for the recognition of different patterns of customary law amongst different groups.38
9.29 The Northern Territory regime, in requiring that somebody must claim to be entitled to a distribution under Indigenous customs and traditions, also allows the possibility that the intestate estates of some Indigenous people can be distributed according to the general rules, which may be the most appropriate response in some circumstances.
ISSUE 9.2
Should the Northern Territory scheme for distribution on intestacy according to Indigenous customs and traditions be adopted?
ISSUE 9.3
If yes, does it require modification?
ISSUE 9.4
If no, should any separate scheme for distribution on intestacy be adopted for Indigenous people?
FOOTNOTES
1. See R F Atherton and P Vines, Succession: Families, Property and Death: Text and Cases (2nd ed, LexisNexis Butterworths, Australia, 2003) at 32.
2. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 at 227.
3. R F Atherton and P Vines, Succession: Families, Property and Death: Text and Cases (2nd ed, LexisNexis Butterworths, Australia, 2003) at 33; P Vines, “Wills as shields and spears” (2001) 5(13) Indigenous Law Bulletin 16 at 16.
4. P Vines, “Wills as shields and spears” (2001) 5(13) Indigenous Law Bulletin 16 at 16.
5. P Vines, “Wills as shields and spears” (2001) 5(13) Indigenous Law Bulletin 16 at 16.
6. Jones v Public Trustee of Queensland (2004) 209 ALR 106 at para 20 (McPherson JA).
7. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 at 173.
8. P Vines, “Wills as Shields and Spears” (2002) 5(13) Indigenous Law Bulletin 16 at 17.
9. Aboriginal Affairs Planning Authority Act Regulations 1972 (WA) reg 9(1).
10. Draft s 34(3) in Queensland Law Reform Commission, Intestacy Rules (Working Paper 37, 1992) at 31.
11. See para 9.27 below.
12. P Sutton, “Aboriginal Customary Marriage – Determination and Definition” (1985) 12 Aboriginal Law Bulletin 13 at 14.
13. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31,1986) Vol 1 at 169.
14. Administration and Probate Act 1969 (NT) s 67A.
15. See para 3.69 above.
16. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 at 175.
17. P Vines, “Wills as shields and spears” (2001) 5(13) Indigenous Law Bulletin 16 at 17.
18. Aboriginal Affairs Planning Authority Act 1972 (WA) s 35(2).
19. Aboriginal Affairs Planning Authority Act Regulations 1972 (WA) reg 9.
20. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 at 228; P Vines, “Wills as shields and spears” (2001) 5(13) Indigenous Law Bulletin 16 at 17.
21. Aboriginal Affairs Planning Authority Act 1972 (WA) s 35(3).
22. Aboriginal Affairs Planning Authority Act 1972 (WA) s 33.
23. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986) Vol 1 at 229.
24. Aboriginal Affairs Planning Authority Act Regulations 1972 (WA) reg 9.
25. Community Services (Aborigines) Act 1984 (Qld) s 173(1); Community Services (Torres Strait) Act 1984 (Qld) s 183(1).
26. Community Services (Aborigines) Act 1984 (Qld) s 169, s 173(4); Community Services (Torres Strait) Act 1984 (Qld) s 179, s 183(4).
27. Administration and Probate Act 1969 (NT) s 71(1)(a).
28. Administration and Probate Act 1969 (NT) s 71B.
29. Application by the Public Trustee for the Northern Territory [2000] NTSC 52.
30. Administration and Probate Act 1969 (NT) s 71C.
31. Administration and Probate Act 1969 (NT) s 71E.
32. Administration and Probate Act 1969 (NT) s 71F.
33. Administration and Probate Act 1969 (NT) s 71A.
34. Te Ture Whenua Maori Act 1993 (NZ) s 109(1).
35. Te Ture Whenua Maori Act 1993 (NZ) s 109(2)-(4).
36. Te Ture Whenua Maori Act 1993 (NZ) s 110(1).
37. Queensland Law Reform Commission, Intestacy Rules (Report 42, 1993) at 13.
38. P Vines, “Wills as shields and spears” (2001) 5(13) Indigenous Law Bulletin 16 at 18.
