Cultural conflict in colonial legal systems: An Australian perspective

Abstract

When a legal system looks neutral on the surface, many will assume that it produces fair results. This assumption is incorrect, as the experience of Aboriginal Australians bears out: seemingly neutral institutions can often contain inherent biases, and can generate biased results. I want to explore and explain how Australia's seemingly neutral laws contain and create bias, and how this cultural conflict extends to popular methods of alternative dispute resolution, particularly mediation models. I will begin by looking at the Eurocentric nationalistic imagery and ideals that feature prominently in Aboriginal policy and in the way that the legal system treats Aboriginal rights, particularly in relation to land. This will assist in highlighting the ways in which laws contain bias and so work, in often unnoticed ways, to create an unequal power balance that disadvantages Aboriginal people. This highlights the need for "alternatives" to the legal system as a way of providing fair, equitable, and just outcomes to disputes. From here I will explore dispute resolution mechanisms used in Indigenous cultures and suggest ways that those assist in the identification of cultural conflict with dominant Australian culture's legal system. I then seek to draw out these cultural conflicts in relation to commonly used mediation models to show that mediation, as structured in many models, is not an "alternative" to the dominant legal system but an extension of it.