"The status of Aboriginal Customary Law in early Colonial Western Australia-A parallel Aboriginal Jurisdiction"

This article examines the debates regarding legal pluralism and the status of Aboriginal law in Western Australia when John Hutt was governor from 1839 to 1846 and had a specific objective to develop a model of colonial governance over Aboriginal people. As in New South Wales, it was not simply a matter of expediency, but moral and legal obligations, which drove a few officials and lawyers to criticise the extent of the application of British sovereignty and law. While there has been some studies of the case of R v Wewar, there has not been an investigation into the extent of the legal debates arising after this case. The question of Aboriginal jurisdiction and legal autonomy was largely debated where European lives and property were not regarded as directly affected. Lawyers at the time realised that the assertion of British Crown sovereignty over Aboriginal people was uncertain and evolving. In seeking guidance, they looked more to theory and practice in other parts of the British Empire where more pluralistic legal systems existed, such as in India, North America and the early United States. They contrasted the conduct of the governments and courts there in relation to Indigenous peoples where a degree of indigenous legal autonomy was accommodated, with that in Australian colonies including WA.