Land, law and language:Some issues in the resolution of Indigenous land claims in

Australia

byGraeme Neate

President, National Native Title Tribunal

Paper delivered to the conference of theInternational Association of Forensic Linguists

Sydney, Australia

11 July 2003

Land, law and language: Some issues in the resolutionof Indigenous land claims in Australia

Contents

Page No1 INTRODUCTION 1(a) Language and law – some general observations 1(b) Legal language and the recognition of Indigenous rights and

interests in land – some issues3

2 RECOGNISING AND DESCRIBING INDIGENOUS LINKS TO LAND

4

(a) Common law 4(b) Statute 7

3 PROVING INDIGENOUS LINKS TO LAND 11(a) Onus of proof, difficulties in proof and analysis recognised 11(b) Aboriginal Witnesses 14(c) ‘Speaking for country’ and who has authority to speak 18(d) Questions and answers – suitability of this approach to obtaining

evidence25

(e) English and other languages and the use of interpreters 34(f) Restricted evidence and prohibited words – when some things

should not be said44

(g) Recording the evidence – some issues with transcript 54(h) The role of experts in explaining and interpreting the evidence 60(i) Written and oral evidence 66(j) Language and land 69(k) Inferences for lack of evidence 71(l) Limitations of the adversarial system 75

4 CONCLUSION 76

Land, law and language: Some issues in the resolutionof Indigenous land claims in Australia

by

Graeme Neate1

1. INTRODUCTION

(a) Language and law – some general observations

According to one writer, ‘The law is a profession of words.’2 Certainly the content of the law is expressed in words, and much of the work of those who administer the law, or who are involved in various forms of legal transactions or proceedings, concerns the use of language. So, for example:

legislation is expressed in words which are chosen for a specific purpose and are set out in a particular format

judges interpret the words of legislation, and expound or develop the common law, by using words

witnesses in court proceedings give most of their evidence, and advocates put their submissions, using words that they hope will accurately and comprehensively convey the circumstances or ideas relevant to the matters in issue.

Most of the words used in legal transactions or proceedings in Australia are ordinary English words. Some of those words have acquired particular meanings when used in legal discourse, either because they are defined in legislation or because they have attracted certain connotations from accepted usage by judges and lawyers. Some words and phrases are technical legal terms, and some of those are in languages other than English.

Courts have long recognised that the law can give words meanings that are variations on, or at variance from, their ordinary meanings. Indeed some judges have been moved to quote the following exchange between Alice and Humpty Dumpty in Through the Looking Glass:

‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean - neither more nor less.’‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

1 I acknowledge the assistance of my research officer, Sera Driu-McNaught, in the researching, writing and checking of this paper.

2 D Mellinkoff, 1963, The Language of the Law, preface, quoted in D Crystal and H Crystal (eds.), 2000, Words on Words: Quotations about language and languages, Penguin, p 267.

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‘The question is,’ said Humpty Dumpty, ‘which is to be master - that’s all.’3

In our legal system, the Parliament is usually the master. Justice Wilcox has written that, like Humpty Dumpty, Parliament can give a word any meaning it wishes, however much this may offend linguistic purists. Parliament is not bound by ordinary usage, but it must make its intention clear.4 As Justice Northrop wrote, the legislature has power to take any word and to give it a meaning completely different to its normal meaning.5

Often words are not defined by statute, and there are arguments about the meanings of words, phrases, clauses, sentences and paragraphs in legal instruments. Sometimes the construction of words is an issue that is ‘finely balanced’ and ‘upon which minds might differ’ so that the conclusion reached by a judge is ‘by no means obvious.’6

Volumes have been written about statutory interpretation,7 and it is in this realm that many arguments occur. These days Australian courts can have regard to a range of extrinsic materials when deciding the meaning of ambiguous words or statutory provisions.8 It remains the case, however, that the ‘proper place to start is the statute’ and ‘the task itself remains that of finding the meaning of the legislation from the text – not from other materials.’9

Even so, questions of statutory construction ‘often involve judicial choice between two (or perhaps more) plausible views as to the meaning of a provision.’ Thus:

While the language of the law tends to encourage particular decisions or reasoning being characterised as ‘correct’ or ‘erroneous’, in truth it is often a question of choosing between arguable alternatives, each of which has merits and drawbacks. The doctrine of precedent ultimately produces an answer which earns the label of being the ‘correct’ construction of a particular enactment or treaty.10

3 See eg Liversidge v Anderson [1942] AC 206 at 244-245 per Lord Atkin; Minister for Immigration v Yusuf (2001) 206 CLR 323 at 359-360 [112], 367 [138] per Kirby J; Qantas Airways v Cornwall (1998) 84 FCR 483 at 489.

4 Smoker v PRA (1994) 53 FCR 287 at 289.5 Franklin v Federal Commissioner of Taxation (1993) 112 ALR 231 at 243.6 See Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR

289 at 307 per Kirby J quoting Spigelman CJ in the Court of Appeal judgment appealed from [1999] NSWCA 478 at [17], [2] and [44].

7 See e.g. D C Pearce and R S Geddes, Statutory Interpretation in Australia, 5th edition, Butterworths, Sydney, 2001; A I MacAdam, T M Smith, Statutes, 3rd edition, Butterworths, Sydney, 1993; D Gifford, Statutory Interpretation, The Law Book Co. Ltd, London, 1990; P St J Langane, Maxwell on Interpretation of Statutes, 12th edition, Sweet & Maxwell, London, 1969.

8 See Acts Interpretation Act 1901 (Cth) s 15 AA and equivalent provisions in other statutes; D C Pearce and R S Geddes, Statutory Interpretation in Australia, 5th edition, Butterworths, Sydney, 2001, Chapter 3, ‘Extrinsic aids to interpretation.’

9 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 186 ALR 289 at 307 [70] per Kirby J.

10 Diatlov v Minister for Immigration and Multicultural Affairs (1999) 167 ALR 313 at 320 [22] per Sackville J.

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Where the law is clear, a court does not ‘give effect to sympathy for or against the predicament’ of parties before it. Rather, ‘by reference to the language of the law in question’, it will decide whether the facts proved attract or fail to attract ‘the application of that language.’11

(b) Legal language and the recognition of Indigenous rights and interests in land – some issues

It is in that linguistic context that the assertions of legal rights and the expressions of aspirations by groups of Indigenous Australians to areas of land and waters - often described as their traditional country – fall to be determined. Such claims of right, when based on a body of traditional laws and customs which is different from and outside the general law of Australia, raise various conceptual and practical issues, many of which have linguistic features or components.

At a broad level are issues about the extent to which, if at all, the general law of Australia recognises, protects and enforces Indigenous peoples’ traditional rights and interests in land.

At a more specific level are myriad practical issues about how those rights and interests which the general law does recognise can be shown to exist. In particular, where there is a process for demonstrating these rights and interests:

who has the onus of proving that those rights and interests exist? who has the authority to give evidence, to ‘speak for country’? is the question and answer technique of obtaining information a suitable approach in

such proceedings? what are the limitations on seeking and giving evidence in English, and what type(s)

of English should be used? what is the role of interpreters in such proceedings? what procedures should be adopted when things that ought not be spoken outside the

group are relevant, even crucial, to proving a case? how reliable is the written record of what is spoken in such proceedings? what is the role of experts, such as anthropologists and linguists, in explaining the

evidence (including the background to or context of that evidence)? should there be any difference in the weight given to, or reliance placed on written

and oral evidence? to what extent is language linked to the land of its traditional owners?

Those questions provide the framework for this paper, and each of the answers has a linguistic facet or component.

2. RECOGNISING AND DESCRIBING INDIGENOUS LINKS TO LAND

11 Applicant A v Minister for Immigration and Ethnic Affairs (1996-1997) 190 CLR 225 at 296 per Kirby J.

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(a) Common law

The Gove land rights case: The conceptual differences between two systems of law in relation to the same tract of land – the general law of Australia and the local traditional Aboriginal law – were starkly illustrated in the Gove land rights case, decided in 1971.

Justice Blackburn decided that the plaintiff clans in the Gove Peninsula area of Arnhem Land in the Northern Territory had a recognisable system of law:12

a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence… ‘a government of laws, and not of men’.13

However his Honour decided, for various reasons, that the plaintiffs should not succeed. For one thing, he decided that the doctrine of communal native title did not form and had never formed part of the law of any part of Australia.14

But he also decided that the link between the plaintiffs and their traditional lands was primarily a spiritual relationship and he suggested that the people had ‘a more cogent feeling of obligation to the land than of ownership of it’. The evidence indicated that ‘the clan belongs to the land [rather] than that the land belongs to the clan’.15 In his view, the plaintiffs did not ‘own’ the land in property law terms. He was convinced that, after comparing how those Aboriginal people thought of their land with the substance of proprietary interests, ‘there is so little resemblance between property, as our law, or what I know of any other law, understands the term, and the claims of the plaintiffs for their clans, that I must hold that these claims are not in the nature of proprietary interests’.16

12 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 268.13 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 267. 14 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 143. The correctness of the decision was

extensively debated. See eg D Brown, ‘Native Title in Colonised Nations,’ (1972) ICLQ 355; J Hookey, ‘The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?’ (1972) 5 Federal Law Review 85-114; L J Priestly, ‘Communal Native Title and the Common Law: Further Thoughts on the Gove Land Rights Case,’ (1974) 6 Federal Law Review 150-173; J Hookey ‘Chief Justice Marshall and the English Oak: a comment’ (1974) 6 Federal Law Review 174; G Lester and G Parker, ‘Land Rights: the Australian Aborigines have lost a Legal Battle, But …’, (1973) 11 Alberta Law Review 189-237; B Hocking, ‘Does Aboriginal Law Now Run in Australia?’, (1979) 10 Federal Law Review 161; also J Hookey, ‘Settlement and Sovereignty’ in P Hanks and B Keon-Cohen (eds) Aborigines and the Law (1984) George Allen & Unwin, Sydney, 1-18; B Hocking (ed) International Law and Aboriginal Human Rights (1988) Law Book Company Ltd, Sydney; Australian Law Reform Commission, The Recognition of Aboriginal Customary Law (1986) AGPS, Canberra, Chapters 5, 6; H Reynolds, The Law of the Land (1987) Penguin Books, Melbourne; Calder v Attorney-General (1973) 34 DLR (3d) 145 at 218 per Hall J; Coe v Commonwealth of Australia (1979) 53 ALJR 403, 24 ALR 118. For a detailed discussion of the case by an anthropologist see N M Williams, The Yolngu and their land: A system of land tenure and the fight for its recognition, 1986, AIAS, Canberra.

15 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 270-271.16 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 273, see also 268-272.

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In his Honour’s view, the fact that the local Aboriginal people thought or spoke of the land as being theirs, as belonging to them, did not answer the question of how the relationship between the people and their land could be characterized at law.17 He concluded that the evidence showed a recognisable system of law which did not provide for any proprietary interest in the plaintiffs in any part of the subject land.18 In other words, there was a conceptual gulf between how the plaintiffs conceived of their links to their traditional land and the criteria by which the general law determined whether people have property in land.

Land Rights Act cases: The plaintiffs failed in their court case, but ultimately prevailed in the sense that the Federal Parliament enacted the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which provides for the grant of certain areas of land to Aboriginal Land Trusts and for the claim and grant of other categories of land.19

The new Act was a novel piece of legislation. It provided a land claim process and for fee simple title to certain categories of land to be granted where Aboriginal people could satisfy an Aboriginal Land Commissioner that there were traditional Aboriginal owners of that land.

The definition of ‘traditional Aboriginal owners’ in relation to land is unusual and, when enacted, probably was unique. Traditional Aboriginal owners are:

a local descent group of Aboriginals who:-(a) have common spiritual affiliations to a site on the land, being

affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b) are entitled by Aboriginal tradition to forage as of right over that land.20

‘Aboriginal tradition’ is defined to mean:

the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.21

Such definitions bear no relationship to notions of ‘property’ that so concerned Justice Blackburn. They illustrate how the Parliament tried to meet the conceptual challenge in accommodating the concepts of one culture (or series of groups’ cultures) in a statutory regime which was meant to benefit the relevant Aboriginal people.22 The nature of that challenge was articulated in the High Court’s 1982 judgment in Re Toohey; ex parte

17 See passage from Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 273, see also 268-269 quoted in footnote 135.

18 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 273-274.19 For an outline of the process see G Neate, Aboriginal Land Rights Law in the Northern

Territory, 1989, APCOL, Chippendale.20 Aboriginal Land Rights (Northern Territory) Act 1976 s 3(1).21 Aboriginal Land Rights (Northern Territory) Act 1976 s 3(1).

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Meneling Station Pty Ltd.23 Justice Brennan wrote that Aboriginal traditions, observances, customs and beliefs applied in relation to sites and areas of land are different from non-Aboriginal traditions, observances, customs and beliefs.24 He quoted the comment of Justice Blackburn in the Gove land rights case that, upon the evidence placed before the court, he understood that ‘the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship.’25 Justice Brennan went on to explain that owners of land under Anglo-Australian law are understood to be vested with a bundle of rights exercisable with respect to land.26 The term ‘traditional Aboriginal owners’ has ‘a very different connotation’. As he noted, a traditional right to forage is the only ‘right’ included as an element in the definition, but even that right is not necessarily exclusive of the foraging rights of others. Foraging rights apart, ‘the connection of the group with the land does not consist in the communal holding of rights with respect to the land, but in the group’s spiritual affiliations to a site on the land and the group’s spiritual responsibility for the site and for the land. Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights.’27

In support of his conclusion, he quoted28the following passage from the writings of the late Professor WEH Stanner that ‘felicitously explained’ the significance to an Aboriginal group of their country:

No English words are good enough to give a sense of the links between an Aboriginal group and its homeland. Our word ‘home’, warm and suggestive though it be, does not match the Aboriginal word that may mean ‘camp’, ‘hearth’, ‘country’, ‘everlasting home’, ‘totem place’, ‘life source’, ‘spirit centre’ and much else all in one. Our word ‘land’ is too spare and meagre. We can now scarcely use it except with economic overtones unless we happen to be poets. The Aboriginal would speak of ‘earth’ and use the word in a richly symbolic way to mean his ‘shoulder’ or his ‘side’. I have seen an Aboriginal embrace the earth he walked on. To put our words ‘home’ and ‘land’ together into ‘homeland’ is a little better, but not much. A different tradition leaves us tongueless and earless towards this other world of meaning and significance. When we took what we call ‘land’ we took what to them meant hearth, home, the source and locus of life, and everlastingness of spirit. At the same time it left each local band bereft of an essential constant that made their plan and code of living intelligible. Particular pieces of territory, each a homeland,

22 Re Kearney; Ex parte Northern Land Council (1984) 52 ALR 1 at 7; Re Kearney; Ex parte Jurlama (1984) 52 ALR 24 at 28; Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 345, 44 ALR 63 at 77 and 80.

23 Re Toohey Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, 44 ALR 63.24 Re R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 356, 44 ALR 63 at

86.25 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 167.26 Citing Rich J in Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 285.27 Re R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 357-358, 44 ALR

63 at 87.28 Re R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 356-357, 44 ALR 63

at 86-87.

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formed part of a set of constants without which no affiliation of any person to any other person, no link in the whole network of relationships, no part of the complex structure of social groups any longer had all its co-ordinates. What I describe as ‘homelessness’, then, means that the Aborigines faced a kind of vertigo in living. They had no stable base of life; every personal affiliation was lamed; every group structure was put out of kilter; no social network had a point of fixture left.29

Mabo v Queensland (No 2): In 1992, 21 years after the judgment in the Gove land rights case, the High Court of Australia held, by a majority of 6:1, that:

The common law of this country recognizes a form of native title which, in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands.30

In his judgment, Justice Brennan (with whom Chief Justice Mason and Justice McHugh agreed) stated:

The term ‘native title’ conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants …

Native title has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.31

(b) Statute

The decisions by courts about the common law have been followed by statutory responses.

Land rights: As noted earlier, the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was novel legislation. The definition of ‘traditional Aboriginal owners’ in relation to land is unusual and, when enacted, probably was unique. It has been accurately observed that ‘there has been much anthropological ink spilt over this definition’,32 and

29 WEH Stanner After the Dreaming 1968 Boyer Lectures, reproduced in WEH Stanner, White Man Got No Dreaming, Canberra, 1979, p 230.

30 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 1531 Mabo v Queensland (No 2) (1992) 175 CLR 1 at 57, 58 and 70. See also Pareroultja v

Tickner (1993) 117 ALR 206 at 209, 213.32 F Brennan ‘Mabo and its implications for Aborigines and Torres Strait Islanders’ in MA

Stephenson and S Ratnapala (eds) Mabo: A Judicial Revolution, UQP, 1993, p 31.

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the writings of lawyers have added to the spillage.33 It is clear that no single model of traditional land tenure exists throughout the Northern Territory, yet the same definition is applied to all groups irrespective of how they see their links to the land. That the definition has proved flexible enough to accommodate most local situations is an indication of the practical, and at times creative, approach taken to those words by lawyers and anthropologists.

Subsequent definitions in other legislation, however, were more broadly expressed. The Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA) each define ‘traditional owner’ in relation to the relevant lands to mean ‘an Aboriginal person who has, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with, and responsibilities for, the lands or any part of them.’

The Aboriginal Land Act 1991 (Qld) provides that a claim by a group of Aboriginal people for an area of claimable land on the ground of traditional affiliation is established if the Land Tribunal is satisfied that the members of the group have ‘a common connection with the land based on spiritual and other associations with, rights in relation to, and responsibilities for, the land under Aboriginal tradition.’ (emphasis added)34

In similar, but slightly different terms, the Torres Strait Islander Land Act 1991 (Qld) provides that a claim by a Torres Strait Islander or a group of Torres Strait Islanders for an area of claimable land on the ground of customary affiliation is established if the Land Tribunal is satisfied that the Torres Strait Islander has a connection, or that the members of the group have ‘a common connection, with the land based on spiritual or other associations with, rights in relation to, and responsibilities for, the area of land under Island custom.’ (emphasis added)35

The adoption of a broader definition than that used in the Northern Territory was, in each case, a conscious legislative policy decision. For example, there are some references to ‘group’ but not ‘local descent group’, and the relevant links are to ‘the land’ rather than to sites on the land. It is thus possible that, on the same evidence, differently constituted groups would meet the different statutory tests and that some groups may satisfy the criteria in one definition but would fail to be recognised as traditional owners under another.

In each case, the words of a statute are critical to the outcome.

Native title: The definition of ‘native title’ adopted by the Federal Parliament in the Native Title Act 1993 draws on the language used by Justice Brennan in his judgment in the Mabo (No 2) case, in the passages quoted earlier in this paper.The definition includes the following:

33 See e.g. G Neate, Aboriginal land rights law in the Northern Territory, APCOL, 1989, pp 28-92.

34 Aboriginal Land Act 1991 s 53(1).35 Torres Strait Islander Land Act 1991 s 50(1).

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(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.36

That definition has been adopted in various state and territory statutes. It has been the subject of extensive judicial analysis.37 The High Court has expressly recognised that the statutory definition is based on passages from the judgment of Justice Brennan in the Mabo (No 2) case, but the Court has stated that it is to the words of the statute that reference must now be made. Native title is what is defined and described in s 223(1) of that Act. The judgments in early native title cases are relevant only to the extent that they cast light on the words of the Act.38

In a series of judgments the High Court has recognised the unique or sui generis nature of native title, and has stressed that native title rights and interests need not be analogous to other estates or interests of land.39 Yet the Court has also made it clear that ‘native title’ 36 Native Title Act 1993 s 223.37 See for example, Western Australia v Ward (2002) 191 ALR 1 at 19 [26], 131 [468] per

Gleeson CJ, Gaudron, Gummow and Hayne JJ; 179 [628]-[629], 181 [635], 182-183 [638], 187-188 [650], 211-212 [717]-718], 276-277 [964] per Callinan J; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at 543 [10], 548 [28], [548-549 [31], 559 [72], 560 [74]-[76] per Gleeson CJ, Gummow and Hayne JJ; 565 [100], 566 [102]-[103], 567-568 [109]-[110], 570 [120], 571 [123] per Gaudron and Kirby JJ; 571-572 [126]-[127], [129], 572-573 [133], per McHugh J; 586-587 [173], 589-590 [182], [185], 590-591 [186], per Callinan J; Wilson v Anderson (2002) 190 ALR 313 at 336 [191] per Callinan J; Commonwealth v Yarmirr (2001) 208 CLR 1; at 35-36 [8], 46-47 [37], 47-48 [40]; 184 ALR 113 at 119-120 [8], 128 [37], 129 [40] per Gleeson CJ, Gaudron, Gummow, and Hayne JJ; 73 [116]; 73-74 [118], 74-75 [122], 75-76 [126]-127], 79-80 [141], 83-85 [154]-[158], 84-85 [159], 85-86 [162], 86-87 [164]-[165], 87-88 [167]; 184 ALR 113 at 149 [116], [118], 150 [122], 151[ 126]-[127], 154 [141], 157-158 [154]-[159], 159 [162], 159-160 [164]-[165], 160-161 [167] per McHugh J.

38 See Western Australia v Ward (2002) 191 ALR 1 at [16], [25] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; Commonwealth v Yarmirr (2000-2001) 208 CLR 1 at [7] per Gleeson CJ, Gummow and Hayne JJ; Members of the Yorta Yorta Aboriginal Community v Victoria (2000) 194 ALR 538 at [37], [70], [75] per Gleeson CJ, Gummow and Hayne JJ.

39 See for example, Western Australia v Ward (2002) 191 ALR at 37 [82] per Gleeson CJ, Gaudron, Gummow and Hayne JJ; see also 161 [578] per Kirby J; 280 [969] per Callinan J; Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at 589 [180] per Callinan J; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 49-50, 88-89, 132-133; 107 ALR 1 at 34-35, 66-67, 101-102; Wik Peoples v Queensland (1996) 187 CLR 1 at 215, 141 ALR 129 at 252;

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as defined in the Native Title Act, and as that definition has been interpreted by the Court, will not reflect the full dimensions of the relationship between Aboriginal peoples and their traditional lands. So, for example, in the Ward case, three of the majority judges wrote:

As is now well recognised, the connection which Aboriginal peoples have with ‘country’ is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that:

…the fundamental truth about the aboriginals’ relationship to the land is that whatever else it is, it is a religious relationship… There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole.

It is a relationship which sometimes is spoken of as having to care for, and being able to ‘speak for’ country. … The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the [Native Title Act]. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them. The difficulties are not reduced by the inevitable tendency to think of rights and interests in relation to the land only in terms familiar to the common lawyer.40

General observations: The expression in a statute of what appears to be a precise description of the relationship between Indigenous people and their traditional land gives rise to linguistic and practical issues. For example, are the words meant to be technical (legal or anthropological) terms or are they meant to have their ordinary English meaning? Once the meaning of the words is established, or at least accepted by common usage among lawyers, must the information to be put in evidence to support an application under that legislation be selected by reference only to the criteria set out in the statute, irrespective of whether that information reflects the situation as understood by the relevant Indigenous community or whether other information is available which would give a more complete and accurate picture of the links of a group and their traditional land but, in a strictly legal sense, is irrelevant to the inquiry?

Here, as in other aspects of attempts to concisely describe the laws of one system from the perspective (and in the language) of another, one might be inclined to ask, with English writer Harold Pinter (in an unrelated context) ‘Does reality essentially remain outside language, separate, obdurate, alien, not susceptible to description? Is an accurate and vital correspondence between what is and our perception of it impossible?’41

Fejo v Northern Territory (1998) 195 CLR 96 at 130 [53], 152 [108], 156 ALR 721 at 739 [53], 757 [108].

40 Western Australia v Ward (2000) 191 ALR 1 at [14].

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For the purpose of this paper, I will proceed on the basis that the relevant statutory definitions at least approximate the types of relationships that Indigenous communities have to their traditional countries. I turn now to consider some of the practical and primarily linguistic issues that need to be addressed in determining whether those links can be shown to exist in a particular case. (Some other related issues are also discussed.)

3. PROVING INDIGENOUS LINKS TO LAND

(a) Onus of proof, difficulties in proof and analysis recognised

From the Gove land rights case onwards, it has fallen to Indigenous plaintiffs or applicants to establish what legally recognisable and enforceable rights (if any) they have in relation to their traditional land or waters. Australian courts have recognised the difficulties that Indigenous plaintiffs face in establishing such rights and interests, and the challenges for courts and tribunals in comprehending and assessing the relationship of groups to their traditional lands.

In the Gove land rights case, Justice Blackburn dealt with such issues as the admissibility of the Aboriginal plaintiffs’ evidence in accordance with the rules of evidence (i.e. how the plaintiffs may prove their case),42 the admissibility of expert evidence given by two anthropologists,43 and the antiquity of the links between the plaintiff clans and the land given the absence of written records or anything corresponding to them.44

Statutory land rights: The subsequent enactment of legislation, such as the Aboriginal Land Rights (Northern Territory) Act 1976, created various processes for the resolution of Aboriginal land claims. Under that Act, for example, groups of Aboriginal people can make a traditional land claim. If they convince an Aboriginal Land Commissioner that they are the ‘traditional Aboriginal owners’ of the land (by refernce to the statutory criteria quoted earlier), the Commissioner will recommend the grant of that land in fee simple title. The High Court, on a number of occasions, has heard appeals in relation to claims under that Act. In one, Justice Brennan referred to:

the difficulties encountered in determining which group among those Aboriginals who have a connection with a tract of country fulfils the statutory criteria of traditional Aboriginal ownership. To ascertain the existence and identity of ‘traditional Aboriginal owners’ of land it is necessary to inquire into the spiritual affiliation with sites and spiritual responsibility for sites and lands, a daunting task for one who tradition,

41 H Pinter, broadcast on Britain’s Channel 4 program Opinion, 31 May 1990, quoted in N Gordimer, Living in Hope and History: Notes from our Century, Farrar, Strauss and Grioux, New York, 1999, p 12.

42 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 151-159.43 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 159-165.44 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 183-198.

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if unexpanded by experience or research, would leave him ‘tongueless and earless towards this other world of meaning and significance.’45

Native title: It has been clear since the judgment in Mabo (No 2) that the onus of proving that native title exists in relation to an area of land or waters is borne by those who assert that they hold those native title rights and interests.46 They need to establish, in effect, substantial continuity of traditional connect to the area back to the date on which the British Crown first asserted sovereignty.

Courts have also recognised that the onus is difficult to discharge. In Mabo (No 2), for example, Justice Brennan observed that the ascertainment of the nature and incidents of native title ‘may present a problem of considerable difficulty.’47

In Mason v Tritton, Justice Priestley expressed the view that ‘it is likely to be difficult, particularly in the more settled parts of the country, for any Aboriginal group to fulfil the rather onerous requirements of proof’.48 The then President of the New South Wales Court of Appeal, Justice Kirby, spoke of the ‘exacting nature of the evidential burden established by Mabo’49 and of the ‘difficult evidentiary task’ facing a claimant in native title proceedings.50 His Honour went on to state:

[The task] is not made easier by the former policies concerning Aboriginal Australians and the ignorance of their history and culture fostered by those policies. What is sufficient evidence to maintain a particular claim will vary according to the particular circumstances of the case. Courts are required to determine the admissibility and effect of evidence. I do not underestimate the difficulty of gathering and adducing such evidence. Proper proof is required out of respect for the rights of all those governed by our laws, including, on occasion, competing Aboriginal claimants. It is appropriate that claimants be put to proof of their claims. Doing so protects the wider community, both Aboriginal and non-Aboriginal, from those who would make illegitimate claims.51

More recently, in the Yorta Yorta case, Justices of the High Court have identified challenges for the applicants and the courts when considering the several elements of the issues that arise in determining whether native title exists, and have observed that these

45 R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 358; 44 ALR 63 at 87-88.

46 See e.g. Coe (on behalf of the Wiradjuri Tribe) v Commonwealth and New South Wales (1993) 118 ALR 193, Mason v Tritton (1994) 34 NSWLR 592, Western Australia v Ward (2000) 99 FCR 316 at 350-352 [114]–[120], 170 ALR 159 at 190-192 [114]-[120] per Beaumont and von Doussa JJ, De Rose v South Australia [2002] FCA 1342 at [8], [265], [342], [914].

47 Mabo (No 2) v Queensland (1992) 175 CLR 1 at 58.48 Mason v Tritton (1994) 34 NSWLR 572 at 600.49 Mason v Tritton (1994) 34 NSWLR 572 at 584.50 Mason v Tritton (1994) 34 NSWLR 572 at 590.51 Mason v Tritton (1994) 34 NSWLR 572 at 590.

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‘may be very difficult questions to resolve. Identifying a society that can be said to continue to acknowledge and observe customs will, in many cases, be very difficult.’52

Other conceptual challenges for a court were recognised. For example,

any analysis of the traditional laws and customs of societies having no well-developed written language by using analytical tools developed in connection with very differently organised societies is fraught with evident difficulty.53

The High Court has stated that the ‘proof of continuous acknowledgement and observance, over the many years that have elapsed since sovereignty, of traditions that are oral traditions is very difficult’54 and ‘the difficulties inherent in proving facts in relation to a time when for the most part the only record of events is oral tradition passed down from one generation to another, cannot be overstated.’55 The High Court has accepted that demonstrating the content of traditional law and custom ‘may very well present difficult problems of proof’56 and that demonstrating the content of pre-sovereignty traditional laws and customs ‘may be especially difficult in cases … where it is recognised that the laws and customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement.’57

In his judgment in De Rose v South Australia, delivered before the High Court’s Yorta Yorta judgment, Justice O’Loughlin stated:

The Court is well aware of the difficulties facing claimants who seek to gather the historical and anthropological material that would support their application for a determination of native title. It attempts to be as sympathetic as possible without causing undue prejudice to any other parties to the application.58

Later he referred to the ‘heavy burden’ on applicants attempting to prove substantial maintenance of connection from sovereignty to the present, ‘even if a Court is prepared to make reasonable assumptions’ in their favour.59

52 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at 554 [52] per Gleeson CJ, Gummow and Hayne JJ.

53 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at 555 [55] per Gleeson CJ, Gummow and Hayne JJ.

54 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at 563 [89] per Gleeson CJ, Gummow and Hayne JJ.

55 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at 555-556 [59] per Gleeson CJ, Gummow and Hayne JJ quoting the primary judge, Olney J. See also Callinan J at 574 [143], 591 [187]-[188].

56 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at 561 [80] per Gleeson CJ, Gummow and Hayne JJ.

57 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at 561-562 [82] per Gleeson CJ, Gummow and Hayne JJ.

58 De Rose v South Australia [2002] FCA 1342 at [370].59 De Rose v South Australia [2002] FCA 1342 at [570].

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Accepting that they have significant barriers to overcome, how do Indigenous people go about establishing their rights at law?

(b) Aboriginal witnesses

Primary witnesses: There are judicial statements to the effect that the evidence of claimants and their Aboriginal witnesses (such as near neighbours) will provide the most compelling evidence in any land claim or native title case.60 This was acknowledged by Justice Owen in Ejai and Ors v Commonwealth & Ors when he stated:

In claims touching on native title the best evidence lies in the hearts and minds of the people most intimately connected to aboriginal culture, namely the aboriginal people themselves. Expert evidence from anthropologists and others is of significance and due regard must, and will, be accorded to it. However, it seems to me that the full story lies in the hearts and minds of the people. It is from there that it must be extracted.61

Practice to date shows that without the evidence of Aboriginal people (claimants and others) the hearing of a land claim or native title application could not proceed, and the application would not succeed. In particular, evidence relating to the traditional Aboriginal ownership of or connection to the land claimed, and the strength of traditional attachment by the claimants to that land must come from Aboriginal witnesses, either alone or in corroboration of the evidence of others.62

In the Miriuwung Gajerrong native title case, for example, the Aboriginal witnesses were described as the ‘primary’ witnesses,63 and there are instances, from the Gove land rights case onwards, where the evidence of Aboriginal witnesses has been preferred where there has been a conflict between their evidence and the expert evidence of, say, an anthropologist or linguist64 or the evidence of local landholders or other observers of the claimants65 or where the evidence of others, such as anthropologists, has not found support in the evidence of Aboriginal witnesses.66

60 For example, see De Rose v South Australia [2002] FCA 1342 at [351], Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 492 per Deane J.

61 Ejai and ors v Commonwealth & ors, unreported, Supreme Court of WA, No 1744 of 1993, 18 March 1994, at 9. See also Andrews v Northern Territory (2002) 170 FLR 138 at 171.

62 G Neate, Aboriginal Land Rights in the Northern Territory, vol 1, 1989, APCOL, p 190.63 Ward v Western Australia (1998) 159 ALR 483 at 525-526, 530, 541-542. See also Western

Australia v Ward (2000) 99 FCR 316 at 357 [145], 359[151], 362 [161], 378 [228], 387 [262]; 170 ALR 159 at 197 [145], 198 [151], 201-202 [161], 217 [228], 226 [262], per Beaumont and von Doussa.

64 See, for example, De Rose v South Australia [2002] FCA 1342 at [102], [312]-[313], [361], [372], and [598].

65 See, for example, De Rose v South Australia [2002] FCA 1342 at [160], [431], [436], [460], [573], and [800].

66 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 168-171.

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Practical issues in eliciting evidence: If Aboriginal or Torres Strait Islander witnesses are to be the ‘primary’ witnesses in such proceedings, it is essential that their evidence be adduced in appropriate ways and that the level of understanding between all the participants in the process is as clear and complete as possible. For many practical, cultural and linguistic reasons such a goal may be difficult to attain.

It is not always easy to elicit such information ‘from a people whose primary language might not be English and who, historically, have depended on oral rather than written recording of tradition.’67 Many Aboriginal people speak English only as a second or subsequent language. Where a form of English is spoken, it varies between what is known as Kriol or other contact varieties (sometimes referred to as Pidgin English) and what has been termed as ‘Aboriginal English’.68 Although Aboriginal English shares most of its vocabulary with Standard English, there are crucial differences in grammar, style, pronunciation and usage which can create serious misunderstandings.69 For example, someone who may be described as a ‘cheeky fellow’ in Aboriginal English may be likely to kill you rather than just be rude to you - and that means ‘kill you dead’, for the term ‘kill you’ might mean just to hit you to speakers of Aboriginal English.70

Courts and tribunals charged with the statutory responsibility for determining land claims and native title applications need to consider whether Aboriginal or Torres Strait witnesses in the proceedings require any particular consideration when they give oral evidence. Verbal misunderstandings between Aboriginal and non-Aboriginal Australians in the courts have been well documented,71 and the courts have come to recognise the disadvantage that may be faced by Indigenous peoples as participants in a trial system structured for, and by, an English speaking literate society.72

Misinterpretation can arise from any of a number of factors such as linguistic interference between witnesses’ first and other languages, non-recognition of nuance or idiom, the use of complex grammar and cultural factors. They illustrate the difficulties that may and do arise when the western judicial process attempts to engage constructively with a people whose language, culture and traditions are fundamentally at odds with their own.73 To address this problem in De Rose v South Australia Justice O’Loughlin stated:67 Ejai and ors v Commonwealth & ors, Supreme Court of WA, No 1744 of 1993, 18 March

1994, per Owen J at 9.68 In Daniel v Western Australia [2003] FCA 666 at [222] Aboriginal English is referred to as a

dialect69 D Eades, Aboriginal English and the Law, Queensland Law Society Inc, 1992; I Malcolm

and M Koscielecki, Aboriginality & English: Report to the Australian Research Council, Nov 1997. See also comments by Aboriginal Land Commissioner (Maurice J), Warumungu Land Claim, A G P S, Canberra, 1988, pp 13-14.

70 See P R A Gray, ‘Aboriginal and Native Title Issues’, Australian Law Librarians 7(1) March 1999, p 5 at 9.

71 See E Eggleston, Fear Favour or Affection, Australian National University Press, Canberra 1976; K Liberman, ‘Problems of communication in Western Desert court-rooms’, Legal Service Bulletin, 3: 94 - 96, 1978; D Nash, ‘Aborigines in Court: foreigners in their own land,’ Legal Service Bulletin, 4: 105-107, 1979; Criminal Justice Commission, ‘Aboriginal Witnesses in Queensland’s Criminal Courts’, Queensland, 1996; D Eades, Language in Evidence, Issues Confronting Aboriginal and Multicultural Australia, University of New South Wales Press Ltd, 1995.

72 See, for example Ward v Western Australia (1998) 159 ALR 483 at 504 per Lee J.

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The interests of justice require that all parties to a dispute and their witnesses be given every reasonable opportunity to give their evidence in a manner that makes clear the information that the witness wishes to impart. It will also assist the administration of justice if the witness is able to give his or her evidence in circumstances that are most convenient and comfortable to the witness.74

His Honour also wrote:

Then there is the nature of the occasion and the forum in which the questions are being asked: a formal or alien setting might inhibit the ability of the witness to answer fully and frankly in English. In this trial, every effort was made to avoid the formalism of a court of law, but the fact remained that it was a court that was in session and no Aboriginal witness would have been unaware of that fact. It was for these reasons that I permitted those Aboriginal witnesses, who wished to, to give evidence through an interpreter.75

Even with the use of interpreters, difficulties still arise in the course of a trial (see (e) English and other languages and the use of interpreters, discussed below)

Language difference is, however, not the only factor that can potentially operate to disadvantage Indigenous witnesses. Misunderstandings can also occur when Indigenous people adopt their own communication characteristics such as avoiding direct eye contact to demonstrate politeness and respect; lapsing into long periods of silence as an indication of a desire to think about a matter; answering questions using quantitative estimates vaguely, inaccurately or inconsistently, rather than in mathematical terms; and gratuitously concurring with the questioner regardless of whether the speaker truly agrees with or understands the proposition or question which has been put.76 Such courtesies from Indigenous people may be misinterpreted as a sign of dishonesty, insecurity, evasion, ignorance and or guilt.77

Difficulties of proof may be compounded to some degree by the operation of the rules of evidence to court proceedings where native title is to be proved,78 although these

73 R v Anunga (1976) 11 ALR 412; The Law Reform Commission, The Recognition of Aboriginal Customary Laws, vol 1, AGPS 1986 para 596.

74 De Rose v State of South Australia [2002] FCA 1342 at [252]. See also Daniel v Western Australia [2003] FCA 666 at [15].

75 De Rose v State of South Australia [2002] FCA 1342 at [249].76 D Eades, Aboriginal English and the Law, Queensland Law Society Inc, 1992, p 47.77 D Eades, Aboriginal English and the Law, Queensland Law Society Inc, Brisbane, 1992 p

55; see also, Departments of Justice, the Attorney-General and Aboriginal and Torres Strait Policy and Development, Aboriginal English in Courts, Queensland Government 2000, see http://www.justice.qld.gov.au/pdfs/AboriginalEnglsih2.pdf ; See also: J Kearins, ‘Factors Affecting Aboriginal Testimony’, Department of Psychology, The University of Western Australia, February 1990, p5.

78 See Native Title Act 1993 s 82, Members of Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at 561 [81] per Gleeson CJ, Gummow and Hayne JJ.

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obstacles seem to be less formidable than in the past.79 In Ward v Western Australia, the trial judge, Justice Lee, stated:

In a proceeding in which native title is in issue any rules of evidence applied to the proceeding must be cognisant of the evidentiary difficulties faced by the Aboriginal people in presenting such claims for adjudication and the evidence adduced must be interpreted in the same spirit, consistent with the due exercise of the judicial power vested in the court under the Constitution.80

His Honour continued:

Of particular importance in that regard is the disadvantage faced by Aboriginal people as participants in a trial system structured for, and by, a literate society when they have no written records and depend upon oral histories and accounts, often localised in nature. In such circumstance application of a rule of evidence to exclude such material unless it is evidence of general reputation may work substantial injustice.81

In summary, because Indigenous peoples choose (or are effectively compelled) to use the general legal system to prove the existence and content of their traditional legal systems we need to provide legal processes that are administered or adapted to ensure that their case is able to be put clearly and assessed on its merits. The Indigenous peoples of Australia are locked into a system of law that is still foreign to many of them. Given the difficulties often facing witnesses and counsel attempting to communicate clearly to each other, the form of questions to be asked may need to be considered carefully to ensure that they elicit comprehensive and accurate answers82 (see (d) Questions and answers – suitability of this approach to obtaining evidence below).

Courts may fare better in establishing a climate of mutual understanding and effective communication where it is clear that an Indigenous person does not comprehend or speak English than when they simply appear to. It is thus necessary for courts to be cognisant of the linguistic, cultural and historical factors that can adversely impact upon an Indigenous witness’s evidence and, to the extent that the law provides, exercise its conferred and inherent jurisdiction to ameliorate those impacts where they may serve to wrought injustice.83

79 See De Rose v South Australia [2002] FCA 1342 at [265]-[271].80 Ward v Western Australia (1998) 159 ALR 483 at 504, citing Delgamuukw v British

Columbia (1991) 79 DLR (4th) 185 at 238-239 per Lamer CJ.81 Ward v Western Australia (1998) 159 ALR 483 at 504, citing Delgamuukw v British

Columbia (1991) 79 DLR (4th) 185 at 238-239 per Lamer CJ.82 For a discussion of communication difficulties of the question and answer method see

Aboriginal Land Commissioner (Maurice J), Warumungu Land Claim, AGPS, Canberra 1988, paras 2.21.2; J von Sturmer, ‘Talking with Aborigines’ Aboriginal Studies Newsletter, No 15, March 1981, pp 13-30; D Eades, Aboriginal English and the Law, Queensland Law Society Inc, Brisbane, 1992.

83 For further discussions on the evidence of Indigenous Witnesses see J Byrne, Issues in Relation to Cross-Examination of Indigenous Witnesses in proceedings under the Native Title Act

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(c) ‘Speaking for country’ and who has authority to speak

It is important to recognise that, in an Aboriginal society, not every person with traditional links to land can speak with equal knowledge and authority concerning his or her country. This is because, in Aboriginal cultures, knowledge is rarely open or freely available. Access to some forms of knowledge is gradually obtained and is jealously guarded. The dissemination of information is tightly controlled and regulated and is hedged about with restrictions according to factors such as age, kinship, descent categories, locality or gender.84 However although gender, age and other specifications of knowledge are well attested, the question is not so much what a person knows but who is entitled to display or perform the knowledge.85 Local rules will govern who can speak and what they can speak about. It is therefore important to determine first which people are fully knowledgeable about the land and have special responsibilities towards it.

So, for example, in reporting on one Queensland land claim, the Land Tribunal noted that claimants gave evidence about their traditional rights to ‘speak for’ or ‘talk for’ their traditional country. Speaking for land included public assertions of ownership, and statements of how the land should be utilised or managed. Giving evidence in the land claim proceedings was itself an important form of speaking for country. However, claimants only gave evidence about land for which they had a right to speak. The right to speak for the land varied depending on seniority, knowledge, and particular associations with particular areas.86

Justice Gray, formerly an Aboriginal Land Commissioner, has observed that the ownership of the right to speak is essential to communicate business, especially to an outsider:

Polite conduct in all Aboriginal discourse is consistent with the laws governing sacred knowledge. Even in mundane matters, it is wrong to speak of (or for) somebody else’s country, dreaming, or personal business unless given explicit licence to do so.87

Some people may know enough but feel unable to speak in the presence of other people who stand in certain kinship relations. Alternatively, a person may have the relevant

1993 (Cth) and Perpetuation of Oral Evidence in native Title Claims, National Native Title Tribunal, Perth.

84 See G Neate, ‘Proof of Native Title’ in B Horrigan & S Young (eds.), Commercial Implications of Native Title, Federation Press, 1997, p.283. See also P R A Gray, ‘Do the Walls Have Ears? Indigenous Title and Courts in Australia’ vol 5, no 1, AILR (2000) p.4.

85 See M Walsh, ‘Interactional Styles in the Courtroom: an Example from Northern Australia’ in J Gibbons (ed.), Language and the Law, Longman, Harlow, England, 1994, quoting von Sturmer, pp 225-226; see also pp 229-231.

86 Land Tribunal, Aboriginal Land Claims to Mungkan Kandju National Park and Unallocated State Land near Lochinvar Pastoral Holding, 2001, paras 508-511, 671, 777, 779, 892-894.

87 See P R A Gray, ‘Do the Walls Have Ears? Indigenous Title and Courts in Australia’ vol 5 no 1 AILRA (2000) p.4. See also E Michaels, Aboriginal Invention of Television in Central Australia 1982-1986, Australian Institute of Aboriginal Studies, Canberra 1986, p.4.

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knowledge but may wish to defer to another who is more senior in the group, or who is of the other gender, and so is the proper person to ask. In some parts of Australia, possession of the land is related to knowledge of it, particularly knowledge of such spiritual features as sacred sites.88

This system of information control within Aboriginal cultures often results in the fragmentation of knowledge across a community because details of community knowledge are often held by only a small number of senior people, with no one person having a complete picture. This fragmentation of knowledge was explained in the context of the North-West Simpson Desert land claim by Dr Jim Wafer:

A major characteristic of oral cultures is that different parts of their traditions are preserved in the memories of different people, with the inevitable overlaps and gaps. It is not usually the case that any one individual has an overview of the whole tradition. In the case of overlap, it is quite common for different individuals to know different versions of the same part of the tradition, because of the way variations occur as the traditions are transmitted over time and across geographical distance.89

The restrictions on who are the appropriate people to give evidence pose some practical problems for the conduct of an inquiry. Younger men and women do not know the content of the secret law and it is extremely inappropriate to ask questions bearing on it. Their perceptions of the operation of that law will differ from those of the senior people whose understanding is based on fuller knowledge.

Even where people are knowledgeable there may be reasons why, on a particular occasion, a person will be unable to speak (for example, there may be ‘speech bans’ or speech taboos following a related person’s death). A number of other factors may influence who is available to give evidence. Knowledgeable individuals may be unable to attend the hearing because they are too frail to travel to the venue or because work, family or other commitments make attendance inconvenient. Where the senior members of the applicant group have died, a senior knowledgeable person from another group may be able to speak about ceremonial and other responsibilities for the land. Such a person may be in the process of teaching younger members of the applicant group and, although not an applicant, he or she is the one who can speak with most authority about the land for that group.90

Whilst the laws of different groups within close proximity of each other may be shared, it would still be wrong to speak of someone else’s country without authority to do so.

88 G Neate, ‘Proof of Native Title,’ in B Horrigan & S Young (eds.), Commercial Implications of Native Title, Federation Press, 1997, p 284.

89 J Wafer and A Green, The Simpson Desert Land Claim; Area 1: the North-West Simpson Desert Central Land Council, Alice Springs 1989, pp 44-45. See also P R A Gray, ‘Do the Walls Ears? Indigenous Title and Courts in Australia’ vol 5 no1 AILRA (2000) p.4.

90 Some anthropologists speak of this role as a type of regency. See G Neate, ‘Proof of Native Title,’ in B Horrigan and S Young (eds.), Commercial Implications of Native Title, Federation Press, 1997, p.284.

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Justice Merkel observed this sharing of community laws in Rubibi Community v Western Australia. His Honour quoted the following evidence of Mr Patrick Dodson Jagun, a Yawuru man, who had appeared on behalf of the claimants and who explained the sharing of laws as follows:

MR BELL: The Court has received evidence that the law is shared with other groups, Nyangumarta, Karajarri, the other two groups, do these groups have lawgrounds?

PATRICK DODSON JAGUN: Yes.

MR BELL: Were those grounds laid down, or constituted, during the Bugarrigarra?

PATRICK DODSON JAGUN: It's hard to answer for those people, but I would say yes.

MR BELL: Why is it hard for you to answer for those people?

PATRICK DODSON JAGUN: Because you are asking me a question about someone else's country.

MR BELL: Yes. Who answers for them in respect of that country?

PATRICK DODSON JAGUN: Those people, Karajarri answer for Karajarri, Nyangumarta answer for Nyangumarta.

MR BELL: Yes. Who answers for Yawuru?

PATRICK DODSON JAGUN: Yawuru.

HIS HONOUR: Sorry, I haven't understood. Do the groups that you were referring to, are they not Yawuru groups?

PATRICK DODSON JAGUN: They're not Yawuru people.

HIS HONOUR: You share some law with them -- you share the law, but not the lawground with them. Is that what's being suggested?

PATRICK DODSON JAGUN: It's like a common law we hold, but they -- that's the law in their country and they are the bosses of the law in their country.

HIS HONOUR: Is there any occasion on which they might come for sharing that law on say a Yawuru lawground?

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PATRICK DODSON JAGUN: Oh yes. But they do that under our authority.

HIS HONOUR: Yes, thank you.

MR BELL: Can you tell his Honour something of the law that is shared, or what this concept of shared law means?

PATRICK DODSON JAGUN: Well the kinship is a good example because that is shared.

MR BELL: Yes.

PATRICK DODSON JAGUN: Banaga, burungu, garimba, barjarri. The rules that related to relationships and marriages is shared because of that kinship structure. There are other aspects which may be more appropriate to try to explain at another time about that.

MR BELL: The fact that the law might be shared, does that mean that the right to speak for country is also shared?

PATRICK DODSON JAGUN: Not for country. Country belongs to the people from the country. They speak for the country. Yawuru speak for Yawuru country, Karajarri speak for Karajarri country, Nyangumarta speak for Nyangumarta, Mangala speak for Mangala, Nygina speak for Nygina.

Whoever the people are belong to that country, they talk for that country. We don't talk for their country.

MR BELL: What does it mean to speak for country in practical terms, about the right to say who goes in, during what time, for what purpose?

PATRICK DODSON JAGUN: You respect those people. You respect the rights of those people to look after when you come to that country. If someone comes to our country, we've got to look after them so they don't go to places, like Kunin for instance. If they don't know where places are, in our law could be dangerous to them, we explain to them to keep away from those places. If they want to go fishing or hunting in the country, then we can explain to them where they can go. They're free to go but if they come from another place, we can show them or take them to those places, so they can go, they're free to go there. But they got to clear those things with people from the country.

MR BELL: In reference to Kunin and here I mean specifically the Reserve, who speaks for that place?

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PATRICK DODSON JAGUN: The lawmen.

MR BELL: The Yawuru lawmen?

PATRICK DODSON JAGUN: The Yawuru lawmen.

MR BELL: What does it mean to speak for the Reserve?

PATRICK DODSON JAGUN: To speak for the law, around which that Reserve is drawn, means that the responsibility to continue the law is the responsibility of those men, the Yawuru men. It means to make the judgements about people who may or may not be permitted to go through the law. It means to protect and look after that ground from interference by people who shouldn't be there, or people who are in the road of the where the law has to travel when it comes there.

MR BELL: It includes the right to say who shall -- you may enter that area?

PATRICK DODSON JAGUN: It does. No-one can walk in there without our permission. If people go in there without our permission, they break the law. They're not allowed to. Anyone with proper respect understands that.

MR BELL: In practical terms, if senior Karajarri or Nyangumarta lawmen were present and you were in their company and an issue arose in relation to whether to go to the Reserve, would they be involved in discussions about who would enter and for what purpose?

PATRICK DODSON JAGUN: They'd ask us. Or we would invite them.91

When seeking information about specific areas of land it is necessary therefore to always ask those persons who are fully knowledgeable about the land and have special responsibilities towards it. It is not sufficient just to ask any person about his or her (or somebody else’s) country. This alone will not avoid situations where information is sought from the wrong person. Where witnesses are shy or otherwise unsure of how to act in this situation and they do not suggest that questions be redirected, their apparent indecisiveness or silence may be misconstrued as ignorance; or the mere delay in releasing information may give rise to suspicion on the part of non-Indigenous participants that what is being revealed is recent invention.92

91 Rubibi Community and Another v Western Australia and Others (2001) 112 FCR 409 at 435-436 [116].

92 G Neate, ‘Legal Language Across Cultures: Finding the Traditional Aboriginal Owners of the Land’ (1981) 12 Federal Law Review 187 at 205-208. See also P R A Gray, ‘Do the Walls Have Ears? Indigenous Title and Courts in Australia’ vol 5, no 1, AILR (2000) p 5.

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Justice Gray has explained, for example, that the answer ‘don’t know’ should not be accepted at face value. It may conceal one of a number of propositions:

This is not my country, so I can’t speak about it. Although this is my country, it is not appropriate for me to speak about it when

someone more senior is present. Although this is my country, it is not appropriate for me to speak about it, but

someone else should be approached for the information. This is not a matter about which I can speak in front of people who are present,

e.g. women or men or children. I cannot say the name because it is the name of a person recently deceased. I cannot say the name because it is the name of my sibling of the opposite sex. I don’t know.93

Further inquiries can be carried out to see which of these (or any other) explanations applies. One might ask, for example, ‘Who should I talk to about that?’94

Although the elders of a group will usually be the main witnesses, speaking with knowledge and authority about their traditional country, young people can have an important role in land claims and native title proceedings.

In the past decade I have heard land claims made in various parts of Queensland, and each group was keen to demonstrate how knowledge was passed on, usually by grandparents to grandchildren. The young people were called to show that they had learned from their elders and were holding the knowledge and exercising responsibility for their traditional country.

For native title to survive,95 the traditional laws and customs must be passed on from generation to generation.

If it is the responsibility of older people to teach the young, it falls to young people to keep the culture alive. That is a message of practical relevance to native title proceedings. In the De Rose case, for example, Justice O’Loughlin stated that, in his opinion, it was ‘very disappointing and somewhat significant not to have received evidence from more young people. One is left wondering,’ he wrote, ‘whether the members of the younger generations have the same interest in native title entitlements as their elders.’96

93 PRA Gray, ‘Taking evidence of traditional Aboriginal rights to land’, paper presented at the Supreme Court and Federal Court Judges Conference, Adelaide, January 1995.

94 See also M Walsh, ‘Interpreting for the transcript: problems in recording Aboriginal land claim proceedings in northern Australia’, Forensic Linguistics 6(1), 1999, pp 180-183.

95 See Western Australia v Ward (2002) 191 ALR 1 at 21 [32] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

96 De Rose v State of South Australia [2002] FCA 1342 at [15], see also [905].

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It is also worth noting that the High Court recently discussed ‘speaking for country’ in relation to the content of native title rights and interests. The majority of the High Court in Western Australia v Ward, a case brought under the Native Title Act 1993, stated:

As is now well recognised, the connection which Aboriginal peoples have with ‘country’ is essentially spiritual… It is a relationship which sometimes is spoken of as having to care for, and being able to ‘speak for’, country. ‘Speaking for’ country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. …It may be accepted that …‘a core concept of traditional law and custom [is] the right to be asked permission and to “speak for country”’. It is the rights under traditional law and custom to be asked permission and to ‘speak for country’ that are expressed in common law terms as a right to possess, occupy, use and enjoy land to the exclusion of all others. The expression of these rights and interests in these terms reflects not only the content of a right to be asked permission about how and by whom country may be used, but also the common law’s concern to identify property relationships between people and places or things as rights of control over access to, and exploitation of, the place or thing.97

While accepting that the right to be asked for permission and to speak for country is a core concept in traditional law and custom, their Honours found that it is not an exhaustive description of the rights and interests in relation to land that exist under that law and custom. They noted that it is wrong to see Aboriginal connection with land as reflected only in concepts of control of access to it. They stated:

To speak of Aboriginal connection with ‘country’ in only those terms is to reduce a very complex relationship to a single dimension. It is to impose common law concepts of property on peoples and systems which saw the relationship between the community and the land very differently from the common lawyer.98

(d) Questions and answers – suitability of this approach to obtaining evidence

Some practical issues: The question and answer style of social interaction and information elicitation is so much a part of the Anglo-Western culture that it is often necessary to remind ourselves that it is not universal. What is often misunderstood is that this style of social interaction and information elicitation is not only unfamiliar to Indigenous communication patterns (which place greater emphasise on the narrative and indirect means of obtaining information) but it is positively antithetical and can cause 97 Western Australia v Ward (2002) 191 ALR 1 at 15 [14], 38 [88] per Gleeson CJ, Gaudron,

Gummow and Hayne JJ.98 Western Australia v Ward (2002) 191 ALR 1 at 39 [90] per Gleeson CJ, Gaudron, Gummow

and Hayne JJ.

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considerable distress for many Aboriginal witnesses.99 In other words, the elicitation of information by direct questioning is generally foreign to Aboriginal people and indirect discourses are often preferred.100 For many Aboriginal people, it is considered disrespectful to ask probing questions especially of the elderly. The privacy of one’s thoughts and feelings are to be respected.101 Unless children become accustomed to the question and answer convention from early childhood, which many Indigenous children do not, research seems to indicate that it is unlikely that they will be at ease with it at any later stage in life.102

Despite those cultural considerations, most of the evidence given by Aboriginal witnesses in land claims and native title hearings is elicited by questions, usually asked by lawyers. Where such evidence is elicited in question and answer form it is important that the questions and answers are comprehensible to all involved in the proceedings.

It is often difficult to obtain information by way of non-leading questions, and in those cases where there is no direct opposition to or contradiction of a claimant’s application, the claimants’ representative (and members of a tribunal) may tend to ask leading questions to more quickly elicit the bulk of the information.

Caution must however be practiced when eliciting information in this way for, as the court in R v Anunga103 recognised, Aboriginals have a tendency to answer leading questions in the way they believe the questioner wants. This gratuitous concurrence and or notion of trying to be helpful are however not confined to leading questions. Dr Diana Eades has explained:

Aboriginal English speakers often agree to a question even if they do not understand it. That is when Aboriginal people say “yes” in answer to a question it often does not mean ‘I agree with what you are asking me.’ Instead, it often means ‘I think that if I say ‘yes’ you will see that I am obliging, and socially amenable and you will think well of me, and things will work out between us.’104

Justice O’Loughlin also observed this readiness for cooperative interaction in De Rose v State of South Australia. His Honour noted that when an elderly female Aboriginal witness was asked: ‘You don’t own the Kalaya stories, do you Cissie?’ she answered,

99 J Kearins, ‘Factors Affecting Aboriginal Testimony,’ Legal Service Bulletin, vol 16 no 1 Feb 1991, p 3.

100 See for example, D Eades, ‘They don’t speak an Aboriginal language, or do they? Language use in Aboriginal identity and cross-cultural communication’ in I Keen (ed.), Being Black: Aboriginal Cultures in ‘Settled’ Australia, Aboriginal Studies Press, Canberra, 1988, pp 97-116; D Eades, Aboriginal English and the Law, Queensland Law Society Inc, Brisbane, 1992.

101 Criminal Justice Commission, ‘Aboriginal Witnesses in Queensland’s Criminal Courts’, 1996, at p 19.

102 J Kearins, ‘Factors Affecting Aboriginal Testimony,’ Legal Service Bulletin, vol 16 no 1, Feb 1991 p 4.

103 R v Anunga (1976) 11 ALR 412 at 414-415.104 D Eades, Aboriginal English and the Law, Queensland Law Society Inc, Brisbane, 1992, p

26.

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saying, ‘Yes.’ His Honour took that answer to be an example of an elderly Aboriginal woman, in a very strange environment, endeavouring to be helpful to a person whom she considered to be in a position of authority. She did not mean by answering ‘yes’ that she owned the Kalaya stories; she was intending to indicate that she agreed with the proposition that was put to her. This became apparent in the course of her testimony.

Q Those stories, are they stories that you own, or are they for the men? A Wati, for men. Q And there are things about the Kalaya stories that you do not know? A Yes. Only for men.105

The careful constructions of questions in English are therefore crucial to the ascertainment of comprehensible and accurate answers. The following example from the Willowra land claim shows how readily confusion may arise even when the question is clear in the mind of the questioner. Here the concepts of seeking permission and inviting are mixed up in the use of the word ‘ask’ in connection with foraging rights:

Mr Howie: When you go hunting on that country, do you have to ask anybody or can you go there any time you want to?

Jimmy I ask somebodyMr Howie When you ask somebody, who do you ask?Jimmy I might ask Japaljarri, my son, I might ask

Jampijinpa about we go hunting……………………..The Interpreter The answer is that he might ask anyone, including

his son, or he might ask Jampijinpa.His Honour It is not a matter of asking anyone, is it?Mr Howie As I understand what he is saying, your Honour, he

is asking in terms of inviting people to come rather than asking for permission.

The Interpreter Yes – ‘Let’s go hunting.’106

A similar misunderstanding in the construction of questions arose in the case of De Rose v State of South Australia. When one of the Aboriginal witnesses was asked, ‘When you finished working at Granite Downs, where did you go?’ he replied, ‘I finished work and I sit down in a camp.’

Whilst a European person would have known, from the nature of that question, that it involved the proposition that there was a physical leaving of Granite Downs, the witness did not recognise this inference.107

105 De Rose v State of South Australia, [2002] FCA 1342 at [804].106 Transcript in the Lander Warlpiri / Anmatjirra Land Claim to Willowra Pastoral Lease, p.

132. 107 De Rose v State of South Australia [2002] FCA 1342 at [255].

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On other occasions, in De Rose v State of South Australia, Justice O’Loughlin also observed that witnesses lacked comprehension of the question that had been put to them and provided unresponsive and in some cases unintelligible answers. For example, when one of the Aboriginal witnesses was cross-examined about the various pastoral stations on which he had worked during his life-time, the cross-examiner endeavoured to find out whether there were any secret places on these stations and asked:

Q. Were there special places on Macumba Station?

The answer as typed in the transcript and consistent with His Honour’s own notes and which bore no correlation to the question as asked was to the effect:

R. Yes, big place, old grass, Dalhousie. Big place like Adelaide. Adelaide is big place. That’s big place too, big place.108

Most of the Aboriginal witnesses in the De Rose case seemed not to have the European notion of time in terms of days, weeks, months and years. They were prepared to say that something had happened a ‘long time’ ago or a ‘short time’ ago but, as his Honour noted, this would not necessarily mean that the periods translated into years or days. A ‘long time’ may for example, be only several weeks. It was therefore very difficult to translate some of the evidence about times into European terms.109

Legal research in Victoria, South Australia and Western Australia conducted by Elizabeth Eggleston as far back as the mid 1960s revealed that court procedure in itself is a cause of unreliable Aboriginal evidence.

The witness does not understand why he is asked to tell the same story over and over again and, not wishing to offend the authorities he changes his story, believing that this is required of him. This makes the cross-examiner’s task of trapping the witness in inconsistencies very easy. But Elkin points out that the rejection of the evidence on the ground of such inconsistencies often leads to injustice. Tatz… quotes a former Darwin magistrate as saying that Aborigines tell their stories honestly on examination-in-chief but they miss out on cross-examination, because they do not understand its functions. When the witness’s limited education is compounded by ignorance of English, the dangers of incomprehension and of resulting false evidence are increased… From personal observation of Aboriginal witnesses I would say that many are not sufficiently fluent in English to convey their meaning to the court or to understand all court procedure. Many are also shy and inarticulate but would probably respond to sympathetic, patient questioning.110

108 De Rose v State of South Australia [2002] FCA 1342 at [256].109 De Rose v State of South Australia [2002] FCA 1342 at [644]. See also [258]-[259].110 E Eggleston, Fear, Favour or Affection, Australian National University Press, Canberra,

Australia, 1976, p 167. See also J Kearins, ‘Factors Affecting Aboriginal Testimony,’ Department of Psychology, The University of Western Australia, February 1990, p 2.

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But the adversarial system, which relies heavily on the question and answer method of seeking information, does not usually entertain sympathetic and or patient questioning; nor does it afford Aboriginal witnesses the opportunity to give their evidence in a narrative form. Witnesses find that they are required to provide answers to specific questions. They also find that they are often interrupted, and the sometimes aggressive tactics of counsel will normally be interpreted as a prelude to verbal confrontation.111

This form of information extraction not only risks causing distress but it is likely to be counter-productive in terms of eliciting the information sought. Many Aboriginal witnesses react to such aggression in the courtroom by remaining silent, providing evasive answers or (as noted earlier) responding with ‘I don’t know,’ answers.112

Nowhere is this shortcoming in the adversarial system more apparent than during cross-examination. Justice Blackburn stated in the Milirrpum case:

I have learned from other experience in this Court, not to place too much reliance on cross examination of Aboriginal witnesses in which the questions are expressed in terms anything less than the most extreme precision.113

Justice Toohey found that, when evidence was given in land claim hearings under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), much depended on the way in which questions were framed, not because answers were evasive or the choice elusive but because the choice of particular words in questions will produce answers of a particular sort.114

More recently, Justice Heerey of the Federal Court has written in relation to court proceedings generally:

The traditional question and answer imposes constraints on the storyteller. In a forensic setting, it is a manifestation of the questioner’s control over the discourse. Paradoxically, although we always say it is the answer, not the question, which is evidence, yet the questioner shapes the answer and decides which topics are dealt with. … Conversely, the less question and answer, the more control the witness has, the more it is his or her story.115

111 P Sutton, ‘…About the Gist of What was Said: Communication in the Context of Native Title’ in Frank McKeown (ed) Native Title: An Opportunity for Understanding, National Native Title Tribunal, Perth 1996 p 117.

112 Criminal Justice Commission, ‘Aboriginal Witnesses in Queensland’s Criminal Courts,’ 1996 at p 21. See also PRA Gray ‘Taking evidence of traditional Aboriginal rights to land’, paper presented at the Supreme Court and Federal Court Judges Conference, Adelaide, January 1995.

113 Milirrpum v Nabalco Pty Ltd (1971) FLR 141 at 171 per Blackburn J.114 G Neate, Aboriginal Land Rights Law in the Northern Territory, vol 1, 1989, APCOL, pp

214-215.115 P Heerey, ‘Storytelling, postmodernism and the law’, a paper presented at the Supreme Court

and Federal Court Judges’ Conference, Canberra, ACT on 25 January 2000, p 17.

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A narrative approach to evidence: In his paper, ‘A different story: narrative versus “question and answer” in Aboriginal evidence,’ Michael Cooke draws on a case study (in which he was personally involved as an interpreter/expert witness) involving an Aboriginal woman who was on trial for wilful murder. He identifies various communication difficulties (as illustrated by the facts of this case) that many Aboriginal people experience in a question and answer interview compared to when they are permitted to tell their own story. Whilst appreciating that information must be sought and cautions administered, he asserts that we must also recognise that narrative testimony is what conforms to Aboriginal speech registers and is conducive to a more thorough elicitation of evidence.116

The accused woman was an Arnhemlander who had limited knowledge of English vocabulary. She could easily misunderstand what was said to her in English and frequently made grammatical and pronunciation errors while speaking English which could cause misunderstanding. She did not have the communicative skills required to cope with a formal interview, such as the interview by police. She exhibited gratuitous concurrence to lines of police questioning. During that questioning, she appeared to use a strategy known as ‘scaffolding’ wherein people acquiring a second language construct messages jointly with native speakers by building from or upon the native speaker’s contributions during the course of conversation.

The story of the killing that emerged from the police interview was different from that in her narrative which had been hand written by her in her own language and translated by Cooke. Whilst the police interview presented her as a killer, her narrative presented a terrifying saga of a brutal man and his female prisoner. She had been raped, bashed, stabbed, bitten, shot at and scalded with boiling water during the months that had constituted the relationship. She had been prevented from ever using a telephone, even to talk to her children or getting to know anyone. This saga had not been alluded to and did not emerge from the police interview. In fact, when she attempted during that interview to give her information as a narrative, she was prevented from doing so by the effect of the police officer’s questions.

While the behaviour of the police interrogators in disrupting and or prematurely closing her attempts at narrative recount was not consciously and purposefully directed at preventing her from explaining how she came to kill her boyfriend, it clearly had that effect. The police interviews were focused on eliciting an admission of guilt. The question and answer framework did not provide the woman with the opportunity to explain herself. Her answers were delineated by the questions she had been asked rather than what was in her mind to say.

In court she was more fortunate in being able to explain herself, utilizing interpretative assistance as and when needed during examination in chief. She was able to explain what had transpired between her boyfriend and her at the time of the final stabbing and just what was on her mind at that time.

116 M Cooke, ‘A different story: narrative versus ‘question and answer’ in Aboriginal evidence,’ Forensic Linguistics, Vol 3, no 2, Routledge (1996) 273 at 279.

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Cooke notes that the advantage of the narrative is that it allows a full picture to emerge. Whilst irrelevant information will also be included with the relevant, and the narrator’s perspectives determine its focus, that is a price worth paying if it is the only means to allow the truth to be told.

It is sometimes suggested that in land rights or native title proceedings Aboriginal witnesses should be invited, by a few fairly open ended questions, to tell their story so that a fuller picture emerges of their relationship to their traditional land. Such an approach, it seems, should make the witness more comfortable in giving evidence and should enable more comprehensive evidence to be given, unconstrained by highly particular (and sometimes ill-informed or misdirected) questions. Such evidence giving would probably need to be well prepared, particularly where the proceedings are robustly adversarial.

One approach that seems to be followed in hearings by the Waitangi Tribunal in New Zealand is that witnesses prepare detailed written briefs of evidence which the witness reads in the hearing. The witness is not interrupted in the presentation and so is able to put on the record a carefully prepared statement of what he or she considers to be relevant. Copies of the statement are provided to the Tribunal, parties and others. The witness may interpolate other comments as he or she reads the document. The witness may then be cross examined.

If such an approach were to be adopted, the witness could tell their story in a more coherent fashion. That is not to say that the statement will not have been carefully crafted for the purpose. Justice Heerey has observed that, in most commercial litigation today, traditional oral evidence in chief has been replaced by the witness statement and that the witness statement can be seen as a story – one carefully crafted for the purpose. ‘Beneath the seamless, persuasive flow of narrative, helpfully signposted by sub-headings, there lie the hidden (and expensive) labours of solicitors and counsel.’117

Experience to date suggests that, whatever its weaknesses, the question and answer approach is likely to continue as the main method of taking evidence in land claim and native title proceedings in Australia, particularly where the proceedings are adversarial (rather than inquisitorial) in character. In saying that, I do not want to discourage the exploration of better methods of adducing information. While present practices prevail, however, we need to ensure that they are attuned to meet the particular challenges of cross-cultural communication.

Hearsay evidence: The application of the hearsay rule in courts also poses a problem in the elicitation of answers from Indigenous witnesses. The difficulty arises when someone says, ‘My old people told me this,’ or ‘I know I am entitled to this land because my father told me so.’ Such statements are produced as evidence of the truth of the statement and are considered to be hearsay. The rules in relation to hearsay evidence so

117 P Heerey, ‘Storytelling, postmodernism and the law’, a paper presented at the Supreme Court and Federal Court Judges’ Conference, Canberra, ACT on 25 January 2000, p 16.

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far as applications for determination of native title are concerned are to be found in the Evidence Act 1995 (Cth). Whilst the provisions of the Evidence Act make allowances for first hand hearsay,118 and are arguably more liberal than the common law rules, the Act is potentially restrictive of any attempt to create new exceptions. Some have argued that that is not enough for an Aboriginal oral tradition, because the information has often been passed from generation to generation.119 Native title depends on traditional laws acknowledged, and traditional customs observed, by Aboriginal and Torres Strait Islander peoples120 and there is a need to provide an adequate opportunity for people who claim traditional connections with land to make their case. Perhaps, as Justice Gray suggests, the solution lies in recognising oral traditions as a category of real evidence, and not as hearsay at all.121

Group evidence: It is not uncommon in land claim proceedings for evidence to be given by groups of witnesses. The Federal Court Rules have assisted with the administration of the Native Title Act 1993 (Cth) by providing that group evidence may be admitted in native title proceedings.122 The rules of evidence generally allow for evidence to be taken only from individuals. But in native title claims, oral evidence may be given by a number of witnesses at once, or by a witness in consultation with other persons, and the names of people consulted during the giving of evidence may at the direction of the court, be recorded in the transcript. Chief Justice Black notes that this rule was developed by the court ‘in recognition of the fact that within many Aboriginal communities not every person is able or willing to speak about their country, and to do so without authority from others may be very wrong. The practice was developed in hearings under the Land Rights Act, and is a recognition that the traditional expectations of the Australian legal system about the giving of evidence cannot be assumed to be appropriate to Aboriginal evidence of traditional rights and interests in land’.123

In his first land claim report as Aboriginal Land Commissioner, Justice Toohey assessed videotaped evidence of a group meeting prior to the hearing and stated:

[T]he important thing is that people spoke in front of the community of matters relating to their own country such as the location of places and dreaming paths about which others would have a general knowledge. There were instances where people spoke and later corrected themselves or were corrected by others but it is fair to say that out of that meeting a general consensus arose regarding the identity of owners of land and the territory to which their ownership related.124

118 Evidence Act 1995 (Cth) ss 62-68.119 P R A Gray, ‘Aboriginal and Native Title Issues’, Australian Law Librarian, 7 (1) March

1999 at p 9.120 Native Title Act 1993, s 223 (1). Mabo v State of Queensland [No 2] (1992) 175 CLR 1 at 58

per Brennan J, and at 109-110 per Deane and Gaudron JJ.121 P R A Gray, ‘Do the Walls Have Ears? Indigenous Title and Courts in Australia,’ (2000) 5

AILR at p 11122 See Federal Court Rules, O 78 r 34.123 The Hon M Black AC, Chief Justice, Federal Court of Australia, ‘Developments in Practice

and Procedure in Native Title Cases,’ Public Law Review, vol 13, March 2002, 16 at p 22.

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He concluded that ‘the best test of the claimant’s traditional ownership is community acceptance.’125 Another Aboriginal Land Commissioner, Justice Maurice, noted that the presence or absence of certain persons is often critical to the result, given the particular rules of etiquette operating within the group, their politics and other social dynamics, the distribution of knowledge, their religion and their law.

In the Lakefield and Cliff Islands National Parks land claim hearings, the claimants had decided in advance that they would not appear alone as witnesses, but instead would appear in groups. It was usual for the senior elder or elders to speak on behalf of the group, although sometimes less senior persons gave evidence which related specifically to themselves, their families or subgroups. When lawyers or counsel assisting the Land Tribunal sought to have less senior persons go back and corroborate the evidence of their seniors, they invariably resisted for under Aboriginal Law, it was not for them to speak further on matters which their seniors had already pronounced upon. Professor Rigsby, who was involved in those claims, has noted that this preference for group evidence is a feature of ongoing Aboriginal custom.126

The National Native Title Tribunal has allowed group evidence in expedited procedure hearings under the Native Title Act 1993 (Cth).127

Where groups give evidence there is often a principal witness who answers most of the questions but whose testimony is supplemented, agreed to and sometimes corrected by other members of the group. Justice Toohey said that he found this a ‘useful way of taking that type of evidence when the object was to extract as much information as possible, not to resolve a conflict of testimony.’128

From the lawyers’ point of view, the primary value of evidence being taken in this way is that it can be confirmed or corrected immediately in the presence of other claimants. 124 Aboriginal Land Commissioner (Toohey J), Borroloola Land Claim, AGPS, Canberra, 1979,

para. 51. See also J Toohey, ‘Aboriginal Land’ (1985-1986) 15 Federal Law Review 159 at 173; E T Durie and G S Orr, ‘The Role of the Waitangi Tribunal and the Development of a Bicultural Jurisprudence’ (1990) 14 New Zealand University Law Review 62 at 69-70.

125 Aboriginal Land Commissioner (Toohey J), Borroloola Land Claim, AGPS, Canberra, 1979, para 63. See also Aboriginal Land Commissioner (Kearney J), Nicholson River (Waanyi / Garawa) Land Claim, A.G.P.S, Canberra, 1985, paras.137 and 152; compare para 161.

126 B Rigsby, ‘AY267: Transcripts in Two Queensland Land Claims’ 15-16 April 1999 pp 5-6. For the Land Tribunal’s discussion of group evidence in the claims see Land Tribunal, Aboriginal Land claim to Lakefield National Park, State of Queensland, 1996, paras 123-126. See also M Walsh, Cross cultural communication problems in Aboriginal Australia, North Australia Research Unit, Discussion Paper No 7/1997 on communal v dyadic styles of communication; and M Walsh ‘Interpreting for the transcript: problems in recording Aboriginal land claim proceedings in Northern Australia’, Forensic Linguistics 6 (1), 1999, pp 178-180.

127 See Silver v Northern Territory (2002) 169 FLR 1 at 7.128 Aboriginal Land Commissioner (Toohey J) Land Claim by Warlpiri and Kartangarurru-

Kurintji, AGPS, Canberra, 1979 para 55; see also Aboriginal land Commissioner (Toohey J), Land Claim by Alyawarra and Kaititja, AGPS, Canberra, 1979, para 57 and cautionary comments about the evidentiary effect of the acquiescence of others to what is said apparently on their behalf in Aboriginal Land Commissioner (Olney J), Garawa/Mugularrangu (Robinson River) Land Claim, AGPS, Canberra, 1991, paras 2.22-2.25; Aboriginal Land Commissioner (Olney J), Kidman Springs/Jasper Gorge Land Claim, AGPS, Canberra, 1990, paras 3.5 and 7.5.

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Given the traditional limitations on what individuals may have authority to say, a more comprehensive picture can emerge from a group of witnesses (in which individuals can defer to others where appropriate) than from individual witnesses examined in the absence of others.

Although the practice of giving evidence in groups has generally proved to be satisfactory, there are problems. In one land claim Justice Toohey agreed with his consultant anthropologist who wrote that it is often difficult to assess whether the evidence spoken by one of the group is an individual view, a view of several (or all) of those present or an attempt to assist another in communicating with counsel and/or the commissioner. The difficulty arises particularly if the group is asked as a group to respond to questions when the facility in English amongst its members is varied, when the group is very large, and/or when the age range within the group is considerable.129

Justice Toohey stated:

It becomes a matter for judgment whether a view expressed is that of the individual speaking, whether it is merely the passing on of the statement of another, whether the evidence is that of the group or perhaps of someone whose will has overborne that of others. While retaining the advantages of people being grouped to give evidence, it is better if questions can be directed to particular named individuals. It helps (and this has been done by counsel in some hearings) if counsel can, in identifying the person giving the answer, say whether the speaker appears to be giving his own answer or merely interpreting for or assisting another.130

(e) English and other languages and the use of interpreters

Interpreting the evidence of witnesses: In some parts of Australia, Aboriginal people are bilingual or multilingual. English is not their first language. The preservation and use of their Indigenous languages is a matter of pride as well as a means of communication.131

Most native title or land claim interactions, however, are conducted in English. The claimants’ unfamiliarity with standard English, compounded with the particular and precise use of English in land claim or native title proceedings, leaves open the prospect of miscommunication between witnesses, questioners and the court or tribunal.

129 Aboriginal Land Commissioner (Toohey J), Limmen Bight Land Claim, AGPS, Canberra, 1981, para 38.

130 Aboriginal Land Commissioner (Toohey J), Limmen Bight land Claim, AGPS, Canberra, 1981, para 39. See also G Hiley, ‘Aboriginal Land Claims Litigation’ (1985) 5 Aust. Bar Review, 187 at 195-196.

131 Note, for example, the observations of Justice Blackburn in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 166-167.

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In his judgment on the De Rose132 native title case, Justice O’Loughlin wrote:

The interests of justice require that all parties to a dispute and their witnesses be given every reasonable opportunity to give their evidence in a manner that makes clear the information that the witness wishes to impart… In those cases where there may be doubts about the ability of a witness to express himself or herself in the English language, it is better to err on the side of caution and to permit witnesses to give their evidence in their first language.

A feature of many land claim and native title hearings has been the absence of interpreters. The usual reasons are either that the witnesses are sufficiently proficient in English to be able to understand questions and adequately answer them in English or that no suitably qualified person is available to interpret. While the latter reason is undoubtedly valid in a number of cases,133 experience has shown that the former is often not. Misunderstandings could have been avoided and ambiguous evidence clarified had evidence not been sought and given in standard English or if the form of non-standard English (Aboriginal English or Creole) had been properly understood and transcribed.

It is clear that a language will only be intelligible to a person who is familiar, either directly or indirectly, with the culture to which the words and phrases refer. As one writer put it years ago: ‘Words are symbols that assume a shared memory.’ 134 One thing that is almost a given in native title discussions or negotiations is that people do not have a ‘shared memory’. The greater the differences between that person’s culture and the culture on which the language is based, the greater the danger of that person misunderstanding the language and the culture to which is belongs.

The conceptual and linguistic conundrums faced in conveying Indigenous peoples’ concepts of links to land from one culture and its language into the language of the general law are well illustrated in the judgement in the Gove land rights case, Milirrpum v Nabalco Pty Ltd, where the judge was not convinced, on a linguistic basis, that the plaintiff’s relationship to their traditional land ought to be described as propriety.135

132 De Rose v South Australia [2002] FCA 1342 at [252].133 This is a problem throughout the legal system. See D Mildren, ‘Redressing the imbalance:

Aboriginal people in the Criminal Justice System’ Forensic Linguistics 6 (1), 1999, pp 137-160.134 Jorge Luis Borges, ‘The Congress’, The Book of Sand, trans Norman di Giovanni, Penguin,

1979, p.33, quoted in N Gordimer, Living in Hope and History, Farrar Straus Giroux, 1999, p.40.135 In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, Justice Blackburn noted the contention

on behalf of the Aboriginal plaintiffs that the evidence showed that they think and speak of the land as being theirs, as belonging to them. His Honour wrote:

It seems to me that to ask what they “think” begs the question; the problem at present before the Court is to characterize what the aboriginal relationship is as manifested by what they say and do, to the land. What they “speak” is in the first place a matter of their own language. About this I had nothing which could strictly speaking be called evidence, except for the fact that much of what the aboriginals said in evidence, both in their own languages as interpreted and sometimes in English, was expressed in language which is consistent with ownership – the phrases “my country”, “our country”, “land of the Rirratjingu”, “land belonging to Gumatj”, and phrases of that nature. For myself, I do not think that this language is of itself of very much weight. In the English language,

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Problems arise not only from differences of vocabulary, but also from differences of grammar between languages. There can be confusion when, for example, Aboriginal witnesses have used English vocabulary in sentences constructed in the form of the grammar of their own language. Conversely, the lack of prepositions in Aboriginal languages may affect the understanding by Aboriginal people of questions asked in English.136

Even though a witness might speak English with an apparent degree of fluency, there are competing factors that could affect the accuracy of the answer of a witness if he or she were required to answer in English. One might ask, for example:

Does the witness truly understand the questions, particularly those that are couched in idiomatic English or in terms that are not restricted to plain everyday words?

Is the witness able to think in English in order to answer accurately in English? To what extent does a formal or alien setting have an effect on the witness, in

particular, does the setting inhibit the ability of the witness to answer fully and frankly in English?137

Linguists have demonstrated the many ways in which standard English and Aboriginal non-standard English differ, and the problems this can cause in land claim hearings. It has been suggested that lawyers and others involved must try to understand the differences between the two communicative codes, and may need to use interpreters to interpret between Aboriginal non-standard English and standard English.138

the possessive pronouns, and the word “of” are used with the widest variety of meanings, some of which do, and some of which do not, imply interests of a proprietary nature. For example, a great variety of relationships is indicated by the following phrases – “my house”, “my son”, “my father”, “my occupation”, “my club”, “my journey”, “my birthday”, “my incompetence in mathematics”. There was before the Court in this case only the slightest material upon which any opinion could be formed about the linguistic usages of the aboriginals. They lady who did most of the interpretation of such of the aboriginal evidence as was given in native languages, spoke and understood Gumatj but not Rirratjingu or any other language, and anything spoken to her or by her, not in English, was in Gumatj. At one stage she explained (and I accept it without reservation) that a certain suffix was used in the Gumatj language to indicate property as distinct from loan or temporary possession. This suffix was being used by the witness in relation to the land. But upon such meagre material it would not be safe to base any generalizations, for there was no investigation of the matter in any depth – for example, what other implications has that same suffix and how are other English uses of the possessive pronouns or the preposition “of” rendered into Gumatj? Moreover there could be no justification, without any evidence, for generalizing about linguistic usages in the other languages from what the Court was told about Gumatj (which was not evidence). Mr Woodward’s proposition that the aboriginals “think and speak of the land as being theirs” may be properly paraphrased as “they think and speak of the land as being in a very close relationship to them” and in this form there would be no dispute about it: (at 268-269).

136 See Australian Law Reform Commission, Report No 2, Criminal Investigation (1975), p.119. See also decision of Forster J in R v Anunga (1976) 11 ALR 412.

137 De Rose v South Australia [2002] FCA 1342 at [249], also [250]-[259], [662], [860].138 See D Eades, Aboriginal English and the Law, Queensland Law Society Inc, 1992; H Koch,

‘Non-Standard English in an Aboriginal Land Claim’ in Pride (ed), Cross Cultural Encounters: Communication and Mis-communication, River Seine Publications, 1985; H Koch, ‘Language and Communication in Aboriginal Land Claim Hearings’ in Romaine (ed), Language in Australia,

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Where an interpreter is needed, the qualifications and skills should include:

being fully at home with the culture of the group to which the Aboriginal witnesses belong

being fully aware of the precise nature of the concepts of the general law (e.g. land rights laws or native title law)

being able to explain legal concepts by the use of suitable analogies, metaphors and illustrations pictured against the background of the Aboriginal people’s culture

being confident in the court context so that the interpreter will feel free to interrupt the proceedings if he or she feels unsure of what is being asked or thinks there is no equivalent in the Aboriginal language

being impartial, even when the information which is transmitted is not in the Aboriginal witness’s best interests.139

It is often not possible to find people possessing all the relevant qualities and qualifications to assist as interpreters in land claim or native title hearings. Where an interpreter meets these criteria, there needs to be flexibility in the way he or she performs the task.

When considering the specific role of the interpreter in the particular circumstances of land rights or native title litigation, it is instructive to consider the various approaches to translation that are taken where literary texts are involved.

In her essay ‘On being translated’, American writer Susan Sontag describes ‘the force of the locution “language barrier” - the barrier which language interposes between one person (or community) and another.’ As Sontag argues ‘language is the enforcer of separateness from other communities (“You don’t speak my language”) as well as the creator of community (“Anyone speak my language around here?”).’ It is the language barrier which translation ‘breaks down.’140

Translation is about ‘differentness.’ It is, Sontag argues, ‘a way of coping with, and ameliorating, and …denying difference - even if…it is also a way of arresting differentness.’141 We retain the sense of translation as the ‘transfer or handing over or delivery from one language to another.’ To translate is ‘still to lead something across a gap, to make something go where it was not,’ and translation is the conveying or transmitting of something from one person, site, or condition to another.’ Sontag continues:

Cambridge University Press, 1991, and J von Sturmer, “Talking with Aborigines” (1981) 15 Australian Institute of Aboriginal Studies Newsletter pp 13-30.

139 See S Wurm, ‘Aboriginal languages and the law’ (1963) 6 UWALR 1 at 8, Y Lester cited in G Brennan, The Need for Interpreting and Translation Services for Australian Aboriginals, with Special Reference to the Northern Territory – A Research Report, RES7, Department of Aboriginal Affairs, Canberra, 1979, p.30.

140 S Sontag ‘On Being Translated’ in Where the Stress Falls, 2002, Jonathan Cape, London pp 344-345.

141 S Sontag ‘On Being Translated’ in Where the Stress Falls, 2002, Jonathan Cape, London p 339.

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For all that its meaning has been ‘spiritualized’ - what is being passed or transferred is from one language to another – the sense of physical or geographical separateness is still implicit, and potent. Languages are like separate (often antagonistic) communities, each with its own customs. The translator is the one who finds (identifies, formulates) the comparable customs in another language.142

Sontag describes three variations of the modern idea of translation.143

1. Translation as explanation – in which the translator is motivated to replace ignorance and obscurity by knowledge, transparency. The translator’s mission is clarification, enlightenment.

2. Translation as adaptation – which is not simply a freer use of language (which purports to express, in another language, the spirit if not the letter of the original text) but the conscious creation of another ‘version’, in other words rewriting.

3. Translation as improvement – which is the hubristic extension of the translation as adaptation.

In the context of land claims and native title proceedings, the first variant is more in line with what is required of the interpreter – and, in some respects, the expert witness. At least the translation from one language to another ought to be reasonably faithful, or have a high standard of fidelity.144 But the accuracy of a translation is not merely a technical question. According to Sontag, it ‘is as well an ideological one. And it has a moral component, which becomes visible when for the notion of accuracy we substitute the notion of fidelity.’145

The notion of ‘ideal translation’ (at least in relation to works of literature) may be characterised by reference to two opposed standards.146

1. Minimum adaptation – in which the translation will feel like one because it will preserve, even flaunt, the rhythm, syntax, tone, lexical idiosyncrasies of the text in its original language.

2. Full naturalisation – in which the translator brings the original text wholly into the new language so that ideally one does not ever feel one is reading a translation. Inevitably, this work of dispelling all traces of the original lurking behind the translation requires taking liberties with the text. Sontag argues, in the literary

142 S Sontag ‘On Being Translated’ in Where the Stress Falls, 2002, Jonathan Cape, London p 340.

143 S Sontag ‘On Being Translated’ in Where the Stress Falls, 2002, Jonathan Cape, London pp 340-341.

144 S Sontag ‘On Being Translated’ in Where the Stress Falls, 2002, Jonathan Cape, London p 343.

145 S Sontag ‘On Being Translated’ in Where the Stress Falls, 2002, Jonathan Cape, London pp 341-342.

146 S Sontag ‘On Being Translated’ in Where the Stress Falls, 2002, Jonathan Cape, London p 342.

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context, that such adjustments or inventions are not only justified, they are necessary.

At the extremes (at least when considering works of literature) contrast is between ‘pedestrian trot’ and ‘impertinent rewrite.’147

Whatever its linguistic or literary limitations, the minimum adaptation end of the spectrum is best suited to legal proceedings. However, when translating a question or an answer the interpreter may, quite properly, wish to give a detailed explanation of the concepts used. This will, on the one hand, go beyond a strict translation (if such a translation be possible) and may tend to be an explanation incorporating the interpreter’s view about the information sought or the answers being given. A case can be made for an interpreter to be free to re-ask and re-phrase a question if there seems to be a failure of communication, so that the interpreter is sure that the witness has understood her or him and that she or he has understood the witness. This may mean pursuing the meaning of an obscure or ambiguous word.

While it may not be possible to find single word substitutes for single English words, this does not mean that the concepts cannot be translated. To translate is to supply an equivalent meaning and that may involve a different form of expression requiring the use of more than one word or phrase. As Justice Toohey wrote:

It is not just a matter of interpretation in the literal sense. Evidence will often concern notions (the relationship of mingeringgi and djunggaiyi to land, for instance), the meaning and context of which can only be brought out by questions that are carefully formulated and answers that are properly comprehended. The line between interpretation and exposition is not always an easy one to maintain; at times it may be necessary to cross it to avoid uncertainty and ambiguity. These comments are for guidance only; it is important to retain flexibility in the way in which evidence is presented.148

The task of an interpreter can be made more difficult by a range of factors. The problems of translating legal concepts for Aboriginal people have been considered by a number of writers,149 some of whom have focused on such extra-linguistic factors as the effect of the attitudes of Aboriginal witnesses to their interrogators on the evidence which will be

147 S Sontag ‘On being Translated’ in Where the Stress Falls, 2002, Jonathan Cape, London p 342.

148 Aboriginal Land Commissioner, Limmen Bight Land Claim, AGPS, Canberra, 1981, para.41.149 For example, TGH Strehlow, ‘Notes on Native Evidence and its Value’ (1936) 6 Oceania

323; AP Elkin, ‘Aboriginal Evidence and Justice in North Australia’ (1936) 17 Oceania 173; Newton, ‘Aborigines and the Criminal Justice System’, in Biles (ed), Crime and Justice in Australia (Australian Institute of Criminology, Canberra, 1977, 135-137; J Coldrey and F Vincent, ‘Tales from the Frontier: White Laws-Black People’ (1980) 5 Legal Service Bulletin 221; Daunton-Fear and Freiberg, “‘Gum-tree’ Justice: Aborigines and the Courts”, in Chappell and Wilson (eds), The Australian Criminal Justice System, 2nd ed, Butterworths, Sydney, 1997 pp.45-100; Cranston, ‘The Aborigines and the Law’ (1973) 8 UQLJ 60 and Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws AGPS, 1986, esp pars 596-600.

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given, and the effect on the evidence of the relationship of a witness to an accused person in criminal proceedings.

Various practical problems have arisen in land claim hearings where the services of interpreters have been sought. On occasions an interpreter may be available who is, or is likely to be, a witness in the claim. Although, in principle, the use of witnesses as interpreters should be avoided, it may be that the only available interpreter is an anthropologist or linguist who prepared the claim book, and the use of that person is appropriate.150 The interpreter should be instructed as to his or her role, and the representatives of other parties may draw the tribunal’s attention to any appearance of bias or other deficiency in the interpreter’s work. Further complications arise when the only person available to interpret is a claimant. It may be that, where a witness can understand and speak English with some proficiency, the evidence should be sought and given in English rather than have a claimant act as interpreter.

In some circumstances it may be appropriate for there to be a male or a female interpreter depending on the gender of the witness. An avoidance relationship may prevent an Aboriginal person acting as an interpreter for one or more of the witnesses.151

Where evidence is given in a language other than English, the court, the parties and the transcript providers will benefit from the assistance of people who can supply the spelling and pronunciation of the words used.152

Even where words are accurately spelt, their meaning may be unclear and hence the interpretation of the evidence will be uncertain.153

Misunderstandings can occur, for example, where there is no one-to-one equivalence between a particular word in English and a word in an Indigenous language, e.g. where the word in one language has more than one meaning and the word in the other language has a limited meaning. Evans has suggested that a good protection against errors entering the native title hearing procedure is to check the barrister’s arguments against carefully compiled dictionary entries for the relevant terms in the Indigenous language. By using examples from the Croker Island case, Yarmirr v Northern Territory,154 he shows the pitfalls of introducing decontextualised words from Indigenous languages into cross-examination and the need for detailed work to be carried out in advance of a hearing by linguists in the relevant semantic domain, such as geographic terminology.155

150 For example in the Cape Melville National Park land claim persons with no other direct involvement in the land claim provided some interpreting services. On some occasions the principal author orf the claim book or the claimants’ representative were the only person qualified to translate some parts of the evidence. See Land Tribunal Aboriginal Land Claims to Cape Melville National Park, Flinders Group National Park, Clack Island National Park and Nearby Islands, 1994, para 142. See also Land Tribunal, Aboriginal land claims to Mungkan Kandju National Park and Unallocated State land near Lochinvar Pastoral Holding, 2001, para 138

151 See De Rose v South Australia [2002] FCA 1342 at [29].152 De Rose v South Australia [2002] FCA 1342 at [17], [18].153 See De Rose v South Australia [2002] FCA 1342 at [125]-[126].154 Yarmirr v Northern Territory (1998) 82 FCR 533.

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Similar concerns have been expressed in New Zealand. In a recent hearing before the Waitangi Tribunal, a Maori witness discussed the translation of Te Reo Maori (described as an official language of Aotearoa). He cited the foreword, preface and introduction to the 1959 edition of Nga Moteatea Part 1,156 which noted the difficulty of accurate translation of Nga Moteatea. He quoted from JB Palmer’s foreword: ‘No matter how brilliant the translation, how apt the phrase or vivid the image, the English version is no substitute for the original Maori.’ The witness continued by arguing that ‘one has to feel Maori to understand fully Maori’.157

In his evidence he discussed the various ways in which key terms in the Maori language can be translated into English. For example he referred to the meaning of, and customary practices, to do with ‘raupatu’. Raupatu has been translated as ‘conquer’158 and is derived from ‘rau’ (many) and ‘patu’ (strike or kill). In his evidence, raupatu ‘had many parameters’ for Maori some of which were not unlike the Pakeha understanding of the word ‘conquer’, and the consequences of raupatu for the victor and those to whom it may apply were ‘quite extensive’ in comparison to those ‘which might apply and be evident using a non-Maori mind-set and understanding of the word ‘conquer’. It did not, however, require ‘total annihilation’ and any suggestion that it did ‘is to offer offence and affront to the chivalry and intelligence of the whole race’.159 Similarly, the word ‘mana’ (authority, power, control) has a variety of uses depending on the context in which the word is used.160

Interpreting Indigenous language words in English language statutes: Some statutes that are written primarily in English include terms from other languages. This is a relatively rare practice in Australia, and when it occurs it may be useful to include a clear definition of such terms to avoid confusion and potential injustice. The Torres Strait Islander Land Act 1991, for example, defines ‘Island custom’ in English language terms.161 That definition says that Island custom is known in the Torres Strait as Ailan Kastom. Whether ‘Island custom’ as defined in the Act is equivalent to Ailan Kastom as understood in the Torres Strait remains to be tested.

155 N Evans, ‘Country and the Word: Linguistic evidence in the Croker Sea Claim,’ in J Henderson and D Nash (eds). Language in Native Title, Australian Institute of Aboriginal and Torres Straight Islander Studies (2002) pp 77-86.

156 AT Ngata and P Te Hurinui, Nga Moteatea Part 1, Wellington, Polynesian Society, reprint 1988.

157 Brief of evidence of Ngaronga Iwikatea Nicholson, dated 11 June 2003, para 66.158 See HW Williams, A Dictionary of the Maori Language, 7th edn, Wellington, GP Books,

1988, p 330.159 Brief of evidence of Ngaronga Iwikatea Nicholson, dated 11 June 2003, paras 108-119.160 Brief of evidence of Ngaronga Iwikatea Nicholson, dated 11 June 2003, paras 213-215, 223,

224.161 Torres Strait Islander Land Act 1991 s.8. ‘Island custom, known in the Torres Strait as Ailan

Kastom, is the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships’. That definition is in almost identical terms to the definition of ‘Aboriginal tradition’ in s. 9 of the Aboriginal Land Act 1991.

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In New Zealand, by comparison, increasing use is made of Maori language words and phrases in legislation. Questions have arisen (or may arise) about the meaning and effect of such words in a statutory context.

One example involved the meaning of the word ‘iwi’ to whom the Treaty of Waitangi Fisheries Commission is required by legislation to distribute the 1989 pre-settlement assets.162 A New Zealand Court of Appeal decision that ‘iwi’ means, basically, ‘people of the tribe’ was appealed to the Privy Council which reformulated the preliminary question and remitted it to the High Court,163 where Justice Paterson had to decide the meaning of ‘iwi’, in particular, whether ‘iwi’ means only traditional Maori tribes.

His Honour concluded that, as ‘iwi’ is a Maori word used in an English language statutory context, it was permissible to take notice of appropriate historical, sociological, anthropological and etymological evidence when determining its meaning.164 That evidence included reports of the Waitangi Tribunal. Having traversed the evidence of etymological experts which made it clear that ‘iwi’ has several meanings, Justice Paterson referred to the need to give a word when used in a statute a meaning in the context of that statute as a whole. In the case of uncertainty, a court is entitled to consider the factual matrix. Where a court has to ascertain the meaning of a word in a foreign language, the judge may consult a dictionary or consider other evidence including expert evidence, dictionaries, reference books, textbooks, articles and even decided cases in appropriate circumstances.165

On the basis of the material before the Court, he concluded that ‘iwi’ means ‘traditional Maori tribes in the sense that a tribe includes all persons who are entitled to be a member of it because of kin links and genealogy’.166 On appeal, the Court of Appeal agreed with Justice Paterson’s conclusion,167 as did the Privy Council.168

Another relevant example of the use of Maori words in a statute is the Te Ture Whenua Maori Act 1993 (or The Maori Land Act 1993) under which the Maori Land Court operates. The preamble to the Act states:

162 For a discussion of the early stages of this case see R Boast, ‘The Treaty of Waitangi and the Law’ (1999) New Zealand Law Journal 123.

163 See Te Runanga o Ngati Porou and Tainui Maori Trust Board v Urban Maori Authorities [1997] 1 NZLR 513.

164 Te Waka Hi o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 at 300, see also 326 where his Honour described the use of the Maori word in an English statutory context as ‘a complication’.

165 Te Waka Hi o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285 at 326-327.

166 [2000] 1 NZLR 285 at 329. For a discussion of ‘traditional tribe’ see 324-326.167 Te Waka Hi o Te Arawa v Treaty of Waitangi Fisheries Commission [2000] 1NZLR 285 at

336 [23] per Gault J, 337 [33], 344-345 [77] per Thomas J, 376 [204] per Keith, Blanchard and Tipping JJ.

168 Te Waka Hi o Te Arawa v Treaty of Waitangi Fisheries Commission [2002] 2 NZLR 17 at 27 [16]-[18].

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Nā ate mea i riro nā te Tiriti o Waitangi i motuhake ai te noho a te iwi me te Karauna: ā, nā te mea e tika ana kia whakaūtia anō te wairua o te wā i riro atu ai te kāwanatanga kia riro mai ai te mau tonu o te rangatiratanga e takoto nei i roto i te Tiriti o Waitangi: ā, nā te mea e tika ana kia mārama ko te whenua he taonga tuku iho e tino whakaaro nuitia ana e te iwi Māori, ā, nā tērā he whakahau kia mau tonu taua whenua ki te iwi nōna, ki ō rātou whānau, hapū hoki, a, a ki te whakangungu i ngā wāhi tapu hei whakamāmā i te nohotanga, i te whakahaeretanga, i te whakamahitanga o taua whenua hei painga mō te hunga nōna, mō ō rātou whānau, hapū hoki: ā, nā te mea e tika ana kia tū tonu he [Te Kooti], a, kia, whakatakototia he tikanga hei āwhina i te iwi Māori kia taea ai ēnei kaupapa te whakatinana:

Whereas the Treaty of Waitangi established the special relationship between the Maori people and the Crown: And whereas it is desirable that the spirit of the exchange of kawanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners, their whanau, and their hapu, and to protect wahi tapu: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu: And whereas it is desirable to maintain a Court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles. (emphasis added)

As is clear, the second paragraph of the preamble is not entirely in English. Rather than translate all the words used in the first paragraph, the second paragraph includes kawanatanga and rangatiratanga (as used in the Treaty of Waitangi of 1840) and taonga tuku iho, whanau, hapu and wahi tapu. The Act defines only one of those terms (wahi tapu), although it does define other Maori terms,169 but provides that in the event of any conflict in meaning between the Maori and the English versions of the Preamble, the Maori version shall prevail.170

The Act provides that, for the purposes of that Act, all land in New Zealand shall have one of six statuses. Among those statuses is Maori customary land which is land ‘that is held by Maori in accordance with tikanga Maori’.171 The Act also provides that every title to and interest in Maori customary land ‘shall be determined according to tikanga Maori’172 The term ‘tikanga Maori’ is defined in the Act to mean ‘Maori customary values and practices’ and has been judicially construed accordingly173 or as Maori

169 See Te Ture Whenua Maori Act 1993 s.4.170 Te Ture Whenua Maori Act 1993 s.2(3).171 Te Ture Whenua Maori Act 1993 s.129.172 Te Ture Whenua Maori Act 1993 s. 132(2).173 See Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa and Rangitane

and Anor v The Attorney-General and Ors, CA 173/01, 19 June 2003 at [101] per Gault P.

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customs and usages.174 What those customs and usages may be is essentially a question of fact for determination by the Maori Land Court.175

It should also be noted that the preamble appears to use whenua and land interchangeably. In a recent decision of the New Zealand Court of Appeal, however, at least one judge was willing to take into account the unique features of Maori customary title in deciding whether the word ‘land’ as used in the Te Ture Whenua Maori Act 1993 should be construed to encompass the seabed. Justice Tipping wrote:

I was initially attracted to the view that it was difficult to read the word ‘land’ in the Te Ture Whenua Maori Act as encompassing the seabed. The Crown and the other respondents … argued that the word ‘land’ could not reasonably be construed as encompassing the seabed. Having reflected upon the matter I find myself unable to conclude that Parliament has indicated with sufficient clarity that if Maori customary title (with its own unique incidents) did extend in some respects to the seabed then such title must be taken as having been extinguished by the use of the word ‘land’. That would be an unduly literal approach. It is also an approach which would risk a constructional begging of the question. If one assumes for the moment that the facts may show that Maori customary title did exist in some way in relation to the seabed, I am not persuaded that by its use of the word ‘land’ in the Te Ture Whenua Maori Act, designed as that Act is to foster and protect Maori rights and values, Parliament has by necessary implication extinguished a species of Maori customary title and the associated land status.176

In coming to the same conclusion, Justices Keith and Anderson said that the use of ‘whenua’ and ‘land’ in the preamble did not resolve the question before the Court in favour of the respondents (who argued that ‘land’ did not include the seabed). Their Honours wrote:

The immediately preceding passage reaffirms the spirit of the exchange of kawanatanga for the protection of rangatiratanga. Te tino rangatiratanga is over whenua and taonga, among other thing, or in the English text over land and fisheries. That rangatiratanga plainly extended in fact to some marine areas, ….177

174 Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa and Rangitane and Anor v The Attorney-General and Ors, CA 173/01, 19 June 2003, at [184] per Tipping J.

175 Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa and Rangitane and Anor v The Attorney-General and Ors, CA 173/01, 19 June 2003 at [184], [186], [194] per Tipping J. See also [14], [49], [56] and [88] per Elias CJ.

176 Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa and Rangitane and Anor v The Attorney-General and Ors, CA 173/01, 19 June 2003, at [187]. See also [188], and [55] per Elias CJ, [171]-[179] per Keith and Anderson JJ.

177 Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa and Rangitane and Anor v The Attorney-General and Ors, CA 173/01, 19 June 2003. at [177].

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It is apparent from an earlier passage in their joint judgment that their Honours understood ‘kawanatanga’ (as used in the Treaty of Waitangi) to mean ‘sovereignty’, ‘te tino rangatiratanga’ to mean ‘chieftainship’, ‘whenua’ to mean ‘lands’ and ‘taonga’ to mean ‘treasures’.178

(f) Restricted evidence and prohibited words – when some things should not be said

The issue: Indigenous people are reluctant (or refuse) to talk about certain subjects in a public domain, or to have a record made of some of their evidence which will be used in a public way. This reluctance to divulge certain information poses a problem when they are confronted with an Australian legal system that is founded on the principle of open justice where information should be publicly and freely available. Indigenous peoples and communities are asked to prove the existence and content of their legal systems in order to attract recognition of their native title or to obtain the grant of land. The process of inquiry and public reporting or judgment writing means that, potentially at least, they have to open up their knowledge for public scrutiny as a necessary precursor to protecting that knowledge.179

Anthropologist Deborah Bird Rose has described this difference between the Australian legal system (which requires an open and impartial inquiry) and an Aboriginal system of law (which is embedded in a culture in which knowledge is organised as intellectual property and is not freely available to all) as ‘a fundamental disjunction.’180

The social reproduction of the land tenure system depends on the control and transmission of knowledge from generation to generation within demarcated groups in ways that are not open. Essentially, if knowledge is constituted as evidence of relationships among persons and between persons and country, then it is most assuredly not available to all and sundry.

In a similar vein, Justice Maurice observed that the ‘requirements of secrecy in Aboriginal society, which affect matters of the greatest significance in Aboriginal law, stand in stark opposition to the norms surrounding judicial inquiries.’181

Given that there exists an economy or hierarchy of knowledge within specific groups, it is neither surprising nor uncommon for the claimants in land claim hearings and native title proceedings to apply for restrictions to be placed on the publication or distribution of

178 Ngati Apa, Ngati Koata, Ngati Kuia, Ngati Rarua, Ngati Tama, Ngati Toa and Rangitane and Anor v The Attorney-General and Ors, CA 173/01, 19 June 2003, at 139.

179 See D B Rose, ‘The Public, the Private and the Secret Across Cultural Difference’ in J Finlayson and A Jackson-Nakano (eds.), Heritage and Native Title: Anthropology and Legal Perspectives AIATSIS, Canberra, 1996, p 113.

180 D B Rose, ‘Whose Confidentiality? Whose Intellectual Property?’ in M Edmunds (ed), Claims to Knowledge, Claims to Country, AIATSIS, Canberra, 1994 p 1; see also pp10-11.

181 Aboriginal Land Commissioner (Maurice J), Warumungu Land Claim, AGPS, Canberra, 1998, para 19.5.2.

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certain evidence. Restrictions may be sought with respect to such things as the names and locations of certain sites and the stories associated with them and descriptions of ceremonies and objects, or more generally, to genealogies. The range of restrictions may vary.

Legal basis for restricting access to some evidence: Express statutory provision is made for the body hearing a claim to impose such restrictions. An Aboriginal Land Commissioner in the Northern Territory may give directions prohibiting or limiting the publication of, or access to, information given, or a book, document or other record produced to the Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).182

The Land Tribunal in Queensland may:

give directions prohibiting or restricting the publication of evidence given before the Tribunal, or of matters contained in documents lodged with the Tribunal or received in evidence by it; or

give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal and of matters contained in documents lodged with or received in evidence by the Tribunal.

In considering whether to give such directions the Tribunal must pay due regard to reasons given to it for doing so, particularly if those reasons are based on any applicable Aboriginal tradition183 or Torres Strait Island custom.184

The Native Title Act 1993 (Cth) provides that, in conducting its proceedings, the Federal Court ‘may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceeding’.185 Section 17(4) of the Federal Court of Australia Act 1976 (Cth) states that the Court may order the exclusion of the public or of specified persons from a sitting of the Court where the Court is satisfied that their presence would be ‘contrary to the interests of justice’. Under Section 50 of that Act, the Court may make an order forbidding or restricting the publication of particular evidence, or the name of a party or witness, if it appears necessary in order to ‘prevent prejudice to the administration of justice’.

The Federal Court Rules expressly provide that the Court may make any order it considers appropriate relating to evidentiary matters including orders:

182 Aboriginal Land Rights (Northern Territory) Act 1976 s 54AA.183 Aboriginal Land Act 1991 s 110. ‘Aboriginal tradition’ is defined as ‘the body of traditions,

observances, customs and beliefs of Aboriginal people generally or of a particular group of Aboriginal people, and includes any such traditions, observances, customs and beliefs relating to particular persons, areas, objects or relationships’. s 9.

184 Torres Strait Islander Land Act 1991 s 107.185 Native Title Act 1993 s 82(2).

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restricting access to the transcript of a proceeding, or to the content of any pleading or other document on the Court file186

relating to the presentation of evidence about a cultural or customary subject187

relating to the manner in which evidence may be presented to the Court, or to the time when and the place where certain evidence is to be taken188

relating to the manner of identifying and referring to evidence about specified subject matters.189

There are numerous examples of rulings made in land claim and native title proceedings in relation to such matters as gender restricted evidence and references to recently deceased persons.

Gender restricted evidence: Justice Gray has noted that the reluctance to talk about certain subjects in public sometimes arises from the fact that there is a division of mythology and spiritual observance into ‘men’s business’ and ‘women’s business’. The higher the level of knowledge, the more secret it will be. As individuals acquire seniority, the greater the knowledge they acquire. Whilst older people within a community will often know of the business of the opposite sex from their spouses they will not speak about it; nor will they regard it as their place to speak about the business of their own sex in front of members of the opposite sex.190

For example, people may be concerned that evidence about the ceremonial life of women not be given to or in the presence of men.191 Restrictions have also been placed on evidence of secret men’s business in many land claims. Such evidence is given in the absence of women and restrictions are placed on the purpose for which the transcript of the evidence may be used and the classes of persons who may be entitled to see it.192

186 Order 78 rules 31(3)(a), (b), 33.187 Order 78 rules 31(f), 32.188 Order 78 rules 31(3)(c), (d); 34, 35.189 Order 78 rule 31(3)(e).190 P R A Gray, ‘Taking Evidence of Traditional Aboriginal Rights to Land’, paper presented at

the Supreme Court and Federal Court Judges Conference, Adelaide, January 1995. See also P R A Gray, ‘Do the Walls Have Ears? Indigenous Title and Courts in Australia’ vol 5, no 1, AILR (2000) pp 12-13.

191 See for example, Aboriginal Land Commissioner (Toohey J), Daly River (Malak Malak) Land Claim, AGPS, Canberra, 1982, Chapman v Tickner (1995) 133 ALR 74

192 See Western Australia v Minister for Aboriginal and Torres Strait Islander Affairs (1994) 54 FCR 144 per Carr J. For more discussions on restricted evidence see for example: Aboriginal Land Commissioner (Gray J), Elsey Land Claim (No 132), AGPS, Canberra, 1997, pp 74 [4.7], 91 [5.9]; Aboriginal Land Commissioner, (Gray J), Tempe Downs and Middleton Ponds/Luritja Land Claim (No 147), AGPS, Canberra, 1998, pp 2 [1.6.2], 3 [1.6.3]; Aboriginal Land Commissioner, (Olney J), Lorella Region Land Claim (No 199) and part of Maria Island Region Land Claim (No 198), AGPS, Canberra, 2002, p 12 [25]; Aboriginal Land Commissioner, (Gray J), Palm Valley Land Claim (No 48), AGPS, Canberra, 1999, pp 6 [1.9], 123 [4.8.3], 130 [4.11.11]; Aboriginal Land Commissioner, (Gray J), The Kenbi (Cox Peninsula) Land Claim (No 37), AGPS, Canberra, 2000, p 20 [2.26]; Aboriginal Land Commissioner, (Toohey J), Yutpundji-Djindiwirritj (Roper Bar) Land Claim, AGPS, Canberra, 1982, p 10 [53]; Aboriginal Land Commissioner, (Kearney J), Murranji Land Claim (No 25), AGPS, Canberra, 1987, p29 [103]; Aboriginal Land Commissioner, (Maurice J), Matarauka Area Land Claim (No 29), AGPS, Canberra, 1990, p 126 exhibit j; Aboriginal Land Commissioner, (Kearney J), Upper Daly Land Claim (No 37), AGPS, Canberra, 1989, p59 [10];

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In De Rose v State of South Australia, a senior claimant during the course of his examination in chief, explained the main Tjukurpa or Dreaming for his country. He however could not speak about the third Dreaming, the Pakalira, in the presence of women. When asked what would happen if he talked about it openly, he said that the old people would not like it because it was a ‘secret sacred thing and I can’t mention that. If I do I will get into trouble and they might kill me.’193 In the course of his judgment Justice O’Loughlin referred to evidence received on a restricted basis but took care to ensure that statements about such evidence revealed as little as possible of the secret material.194

When faced with the issue of whether to exercise the discretion to restrict, the courts have had to balance the interests of the Indigenous applicants on the one hand with that of the promotion of the interests of justice on the other. In Western Australia v Ward (‘Ward’),195 for example, the Full Federal Court upheld the protocols developed by Justice Lee at first instance regarding gender restricted evidence. In that case the applicants had proposed that gender restricted evidence from female witnesses should be received by a female anthropologist who, in turn, would prepare a ‘confidential’ report which was not to be read by men. The respondents objected as this proposal seemed to envisage the appointment of the anthropologist as an assessor.

The respondents relied heavily on the decision of the Full Federal Court in Tickner v Chapman196 that information specifically about ‘women’s business’ (which had been provided to a woman law professor appointed by the Commonwealth Minister for Aboriginal Affairs to prepare a report for him under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)) had to be disclosed to the Minister even though he was not of the appropriate sex. Although section 10 of that Act effectively required the Minister personally to consider a report prepared for him, including any representations contained in it, the Native Title Act 1993 (Cth) specifically required the Federal Court to take into account the traditional customary concerns of the Indigenous peoples.

Having received the various submissions of the parties, Justice Lee made directions constituting a protocol to apply to the receipt of Aboriginal evidence. Depending on the

Aboriginal Land Commissioner, (Olney J), Kenbi (Cox Peninsula) Land Claim AGPS, Canberra, 1991, p 134 exhibit NLC30RM; Aboriginal Land Commissioner, Jawoyn (Gimbat Area) Land Claim (No 111), Alligator River Area 111 (Gimbat Resumption-Waterfall Creek) (No 2), Repeat Land Claim (No 142), AGPS, Canberra, 1995, p 12 [1.25].

193 De Rose v State of South Australia [2002] FCA 1342 at [66]; See also paragraphs pertaining to restricted evidence: [72], [273], [322], [403], [619], [688], [767], [791], [833], [873], [903].

194 De Rose v State of South Australia [2002] FCA 1342 at [326], see also paragraphs [332], [337], [380]-[382], [384], [388]-[390], [417].

195 Western Australia v Ward (1997) 76 FCR 492; 145 ALR 512. The substantive decision on the merits of the Miriuwung Gajerrong claim is also reported as Ward v Western Australia (1998) 159 ALR 483; For a more in-depth discussion of restricted evidence, see P Johnston, ‘Gender Restricted Evidence in Aboriginal Land Claims-Legal and Constitutional Issues,’ (1998) 2 Mac LR 29.

196 Tickner v Chapman (1995) 57 FCR 45.

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particular circumstances, substantial restrictions on the mode of giving evidence were contemplated. The orders made by His Honour, which incorporated the directions proposed by him, included:

6. Occasions will arise when the taking of evidence should occur in restricted circumstances. The occasions will arise by reason of traditional laws and customs which prevent women and men respectively speaking about certain matters, for example, matters going to law, ceremony and ritual, in the presence of persons of the opposite gender and the communication of the details of such matters to persons of the opposite gender.

7. In those cases where the taking of evidence should be restricted for these reasons, it is to be understood that restrictions will apply to both the circumstances in which the evidence is taken and recorded, and the subsequent sharing, communication or dissemination of the evidence or record of the evidence produced.

8. In the event that a party seeks restrictions in respect of evidence to be given in the proceedings, notification of the restrictions sought and the basis for the restrictions is to be given to the court and other parties no later than 28 days before the date the evidence is to be heard.

9. Any party who objects to the restrictions sought is to file and serve a notice of objection within 14 days of the receipt of the notification of the restrictions sought.

10. Each party is entitled to be represented at a hearing of gender restricted evidence by no more than two lawyers of the same sex as the witnesses.

11. Each party is entitled to have present at a hearing of gender restricted evidence one anthropologist of the same sex as the witnesses for the purpose of assisting the party’s lawyers.

12. Only if cause has been shown and leave obtained from the court to do so may:(a) the party’s lawyers and anthropologists who attend the hearing of

gender restricted evidence divulge information about the evidence to that party’s other lawyers or anthropologists engaged in the proceedings regardless of gender, or

(b) transcript of gender restricted evidence be available to the party’s other lawyers or anthropologists regardless of gender.

13. The transcript of evidence or other record made of or in relation to any evidence restricted on the basis of gender and information in respect thereof may not be disseminated to any persons other than to counsel, instructing solicitors and anthropologists as instructed by a party, such persons being of the gender required by the aforesaid restriction unless leave has been obtained from the court in the same terms as described above.197

197 Western Australia v Ward (1997) 76 FCR 492; 145 ALR 512; see also Ward v Western Australia (1998) 159 ALR 483.

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The State of Western Australia appealed to the Full Federal Court.198 The State submitted that it could be implied from Chapter III of the Australian Constitution199 that the parties to a proceeding were required to take the judge as they found her or him. The same, it was said, was true of barristers and solicitors appearing before the Court. No order could therefore be made restricting who in a particular circumstance might be able to appear as counsel. Alternatively, the efficacy of the Court’s function could be adversely affected if, for example, women’s evidence were only able to be heard in the presence of female practitioners, so that a male senior counsel leading a party’s legal team would not be able to evaluate and make full submissions to the Court on such evidence.

The Full Federal Court dismissed the appeal and upheld the orders made by Justice Lee. The appropriate test to apply in any case where the Court exercised its discretion to exclude was that set out in s 50 of the Federal Court of Australia Act 1976 (Cth), namely whether an order was necessary to ‘prevent prejudice in the administration of justice’. Whilst a court would need to be careful in exercising its discretion, there would be circumstances in which restrictive orders would be justified to ensure justice was properly administered. Accordingly, the majority of the Full Federal Court200 proposed that order (6) of Justice Lee’s protocol be amended to read as:

Occasions may arise when it will be in the interests of the administration of justice that the taking of evidence should occur in restricted circumstances. These occasions may arise where traditional laws and customs prevent women and men respectively speaking about certain matters, for example matters going to law, ceremony and ritual, in the presence of persons of the opposite gender and the communication of the details of such matters to persons of the opposite gender.201

Justice Branson thought that the task of a court exercising powers of exclusion and restriction under ss 17 and 50 of the Federal Court of Australia Act 1976 (Cth), involved an evaluation of whether the normal attributes of procedural fairness should, in exceptional cases, be required to give way to other and more compelling considerations to ensure that the interests of justice prevail. The demands of justice in any particular case were to be identified by a process of weighing in the balance the competing interests arising from the nature of the exercise of judicial power generally and from the individual circumstances of the case. Further, the fact that in the circumstances of a native title claim the orders made might be discriminatory would not infringe any doctrine of equality before the law so long as the orders were reasonably capable of being seen to provide a rational and relevant basis for differential treatment concerning witnesses.202

Her Honour stated:

198 This account of the proceedings is summarised from P Johnston ‘Gender restricted evidence in Aboriginal land claims’ (1998) 2 Mac LR 29.

199 Australian Constitution Chapter III deals with the Judicature.200 Western Australia v Ward (1997) 76 FCR 492; 145 ALR 512 per Hill and Sundberg JJ.201 Western Australia v Ward (1997) 76 FCR 492 at 502; 145 ALR 512 at 522.202 Western Australia v Ward (1997) 76 FCR 492 at 509-510; 145 ALR 512 at 529-530.

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To enable the …balancing exercise properly to be undertaken, it will, in my view, rarely, if ever, be sufficient for the Court to act simply on the assertion of counsel or a party that certain evidence which it proposes to lead is, for example, “gender restricted”. Before making an order…the Court will wish to be satisfied, usually following the receipt of evidence, of the existence of the asserted legal or cultural rule or norm, of the extent to which (if at all) such rule or norm admits flexibility in its application, of the importance of the relevant evidence to the case of the party seeking to call it, of the degree of likelihood that if the requested restrictions are not imposed on the publication of such evidence the evidence will not be given, and of the proportion of the total evidence proposed to be called by the applying party in respect of which orders restricting its publication are likely to be sought. In particular cases additional considerations might arise.203

The State of Western Australia applied for special leave to appeal to the High Court.204 In refusing special leave to appeal, Justice Toohey who spoke for the Court stated:

This application relates essentially to procedures devised by a judge of the Federal Court for dealing with what has been referred to as gender-restricted evidence in a Native Title Act hearing. Those procedures were, in substance, upheld by the Full Court. These are matters best left to the courts below unless the procedures necessarily offend some basic principles. A principle sought to be established was that it is an essential element of procedural fairness that a party may always have one representative privy to all evidence given in the case. In the circumstances in which the procedures have been devised, and having regard to the sort of orders that have been made to date, which may be modified by leave, the Court is not persuaded that any principle, if it exists, has been offended. Accordingly, special leave is refused.205

There has been some criticism of orders of the type made in Ward.206 It should be noted that the ruling in Ward was made prior to the 1998 amendments to the Native Title Act when the Act provided:

s 82 (2) The Court, in conducting proceedings, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders.

(3) The Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence.

203 Western Australia v Ward (1997) 76 FCR 492 at 510; 145 ALR 512 at 530.204 See www.austlii.edu.au/au/other/hca/transcripts/1997/P36/2.html 205 www.austlii.edu.au/au/other/hca/transcripts/1997/P36/2.html at p 14.206 See P Johnston, ‘Gender Restricted Evidence in Aboriginal Land Claims,’ (1998) 2 Mac LR

29 at p 46.

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That section was amended pursuant to the Native Title Amendment Act 1998, which took effect from 30 September 1998, to read:

s 82 (1) The Federal Court is bound by the rules of evidence, except to the extent that the court otherwise orders

(2) In conducting its proceedings the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party in the proceedings.

Although there is still scope for the Federal Court to make orders of the kind made in Ward, Justice Olney has described the new provisions as being ‘more stringent’207 and it has been argued that gender-restricted protocols are less likely to be made.208

In Sampi v State of Western Australia, 209 decided after the amendments to s 82, Justice Beaumont noted that the exercise of the Court’s discretion in the matter under consideration will involve a balancing of several considerations, namely, on the one hand, the promotion of open justice (with a view to achieving full accountability of the judiciary and its processes); and the provision of procedural fairness by recognition of the entitlement, prima facie at least, of each party to the litigation to access all material used or disclosed in the proceedings with a view to achieving both private and public confidence in the court system; and, on the other hand, the public and private interest recognised by the common law and reinforced in this context by the express provisions of s 82(2) of the Act in respecting confidences by the adoption of proportionate measures.210

His Honour stated:

In the exercise of the discretion to restrict or not to restrict, the ultimate question, as was held in Ward (and as the parties here accept) is to ask which course do the interests of justice dictate?...As Branson J pointed out in Ward, this question is not to be answered in the abstract.211.

In the Sampi matter His Honour acceded to the applicants’ application as a matter of principle, but only upon the footing that machinery would be established by the directions to be given which would ensure that none of the respondents would be denied procedural fairness. His Honour ordered:

207 Yorta Yorta Aboriginal Community v Victoria, No VG 6001 of 1995, Unreported decision dated 18 December 1998 at [15].

208 See P Johnston, ‘Gender Restricted Evidence in Aboriginal Land Claims,’ (1998) 2 Mac LR 29 at p 47. See also Re Nolan; exparte Young (1991) 172 CLR 460 at 497; 100 ALR 645 at 665-666 where Gaudron J stated that ‘an essential feature of judicial power is that it must be exercised in accordance with the judicial process’, and Grollo v Commissioner of Australian Federal Police (1995) 184 CLR 348 at 379; 131 ALR 225 at 246 where McHugh J declared that ‘open justice is the hallmark on the common law system of justice and is an essential characteristic of the exercise of federal judicial power’.

209 Sampi v State of Western Australia [2001] FCA 619.210 Sampi v State of Western Australia [2001] FCA 619 at [4].211 Sampi v State of Western Australia [2001] FCA 619 at [5]-[6].

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2. The transcript of evidence is to have a covering sheet clearly marked with the date of the hearing at which the evidence was given and the words ‘Gender Restricted Evidence-This transcript records evidence by Aboriginal men concerning matters that by Aboriginal tradition must not be revealed to persons other than initiated adult males. This transcript must not be viewed by persons other than-

(a) those present at the time of this hearing; and

(b) Professor Howard Morphy and Mr Paul Greenfeld, being, respectively, the second and fourth respondents’ expert anthropologists, provided always: (i) that counsel for those respondents respectively shall first have certified in writing, filed with the Court that, in his opinion, disclosure of that transcript or part of that transcript is necessary at that stage for the purposes of the proper conduct of the case of that respondent; and (ii) that such expert has filed with the Court an undertaking to the Court that the evidence in that transcript will not be divulged to any person not present at the hearing of the evidence and be not used for any purpose other than for the purpose of this proceeding or any appeal.’

Due to a change in the circumstances in which gender restricted evidence was to be given Justice Beaumont later varied his order. 212

Restrictions on the use of the names of deceased persons: It is the general practice of many Aboriginal communities not to speak the name of a deceased person or at least a recently deceased person. To speak the name or publish it in some other form can be perceived as being discourteous and may lead to a sense of concern, offence, shame or embarrassment. I have been conscious of this practice when dealing with land claims, and have been concerned that witnesses should feel under no obligation or pressure to refer to such people if to do so would be a breach of local practice or taboo, and if it would be possible to identify such a person in another, indirect way.

During the hearing of the Aboriginal land claim to Lakefield National Park,213 for example, the reticence of claimants to name deceased persons was relied on by their representative as one basis for restricting the copying and distribution of some parts of documents which were later tendered as evidence.214 In the course of hearing those proceedings, however, written and oral evidence concerning such matters as family relationships and histories, as well as traditional affiliation with land, involved the direct naming of deceased persons, some of whom had died relatively recently. The Land Tribunal raised the issue of the naming of deceased persons on the first day of the hearing 212 Sampi v State of Western Australia (No 3), [2001] FCA 695 at [4].213 Land Tribunal, (G J Neate, G H Dillion, B M Perel), Aboriginal Land Claim to Lakefield

National Park, 1996, pp33-34 [132]-[134].214 See Reasons for decision on an application for restrictions on the copying, distribution and

use of the Claim Book dated 14 April 1994, paragraphs 29, 32, 33.

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and was satisfied that witnesses were willing to speak the names of deceased persons for the purpose of giving unambiguous evidence relevant to the land claims.215

In another land claim hearing216 the issue of whether to use deceased persons’ names was raised in the opening session of the hearing and there was some evidence of a Murri law prohibition on calling the names of recently deceased persons, at least until certain events had taken place.217 Practices varied during the hearing. Occasionally a witness would decline to name a deceased person218 or would refer to a deceased person in terms of that person’s relationship to a living person.219 There were various occasions on which witnesses referred to deceased persons by name (perhaps only for the purpose of facilitating the hearing of evidence).220

After the hearing of the matter had concluded, the Land Tribunal was informed that two senior claimants who had given evidence had passed away. In consultation with the Cape York Land Council and members of the deceased person’s families, the Tribunal decided to refer to those persons by indirect means sufficient to identify them but without using their names. The deceased Kaanju man was referred to as ‘a senior Kaanju elder’ and citations of the transcript of his evidence used his initials. Similarly, the deceased Mungkan woman was referred to as a named man’s older sister and citations of the transcript of her evidence used her initials.221

Other examples: The imposition of restrictions on the publication of names or evidence is not unique to land claims. Suppression orders are made in a range of judicial proceedings. In Foster v Mountford and Rigby Ltd222 judicial recognition was given to the detrimental consequences which publication of certain matters can have for Aboriginal groups. In his reasons for decision on an ex parte application for an injunction prohibiting the publication within the Northern Territory of Dr Charles 215 See for example G Neate and B Rigsby transcript 13-16, M Neal transcript 452-453, J

Harrigan transcript 492, M Langton transcript 1395. For further discussions on the naming of deceased persons see: Land Tribunal (G J Neate, R V Anderson, W W McLachlan), Aboriginal Land Claim to Simpson Desert National Park, 1994, p 26 [122]-[123]; Land Tribunal (G J Neate, G H Dillon, B M Perel), Aboriginal Land Claim to Cliff Islands National Park, 1996, p 16 [55]-[57]; Land Tribunal (G J Neate, E Rosendale, G McDonald), Aboriginal Land Claim to Ten Islands; Near Cape Grenville: The Wuthathi Claim, 1998, p 34 [97]-[98]; Land Tribunal (G J Neate, N T Bonner, R G Wright), Aboriginal Land Claims to Cape Melville National Park, Flinders Group National Park, Clack Island National Park and Nearby Islands, 1994, p 26 [145]-[146]; Land Tribunal (G Neate, G Martin, D Webster), Aboriginal Land Claims to Mungkan Kandju National Park and Unallocated State Land Near Lochinvar Pastoral Holding, 2001, p 27 [108]-[110].

216 Land Tribunal, Aboriginal Land Claims to Mungkan Kandju National Park and Unallocated State Land Near Lochinvar Pastoral Holding, 2001, p 27 [109]; see also G Neate transcript 13, L Goodchild transcript 20.

217 See M Sellars transcript 845.218 See V Lawrence transcript 624.219 See M Arkwookerum transcript 936, A Chase transcript 1293, 1296.220 See D Harold transcript 61-62; see also A Chase transcript 1293-1294, 1296, D Martin

transcript 1309-1310, 1432.221 See Land Tribunal (G Neate, G Martin, D Webster), Aboriginal Land Claims to Mungkan

Kandju National Park and Unallocated State Land Near Lochinvar Pastoral Holding, 2001, p 28 [110]. See also De Rose v State of South Australia [2002] FCA 1342 at [15].

222 Foster v Mountford and Rigby Ltd (1976) 14 ALR 71.

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Mountford’s book Nomads of the Australian Desert, Justice Muirhead found that a number of photographs, drawings and descriptions of persons, places and ceremonies found in the book had ‘deep religious and cultural significance’ to the plaintiffs. The revelation of secret matters had ‘caused dismay, concern and anger.’ His Honour stated that the plaintiffs’ concern ‘goes basically to the fact that the revelation of the secrets to their women, children and uninitiated men may undermine the social and religious stability of their hard pressed community.’223 He found that the plaintiffs had made out a prima facie case that the continuing publication of the book ‘may cause damage of a serious nature, damage of a type to which monetary damages are irrelevant…and, perhaps, there can be no greater threat to any of us than a threat to one’s family and social structure.’224

(g) Recording the evidence – some issues with transcript

The value of accurate transcript: Even when the linguistic hurdles have been cleared in the course of land claim or native title proceedings it is essential that the evidence be recorded accurately and completely. The usual approach is to prepare a written transcript from sound recordings.

Transcript can capture what was said in a readily accessible, portable and durable form, so that long after the words were spoken they can be analysed for the purpose of making submissions and writing judgments or determinations, and for arguing and deciding any appeals from those judgments or determinations.

Transcript can also provide a relatively complete record of what, for various reasons, some people who were present at the hearing might have missed hearing. On field visits, for example, the quiet voices of some witnesses and the sounds generated by wind, insects, dogs, and passing motor vehicles, and other background noises, can mean that it is difficult for a party, tribunal or court to obtain a complete and accurate appreciation of the evidence as it is given. Tape recordings sometimes capture more of what was said than any one person present can hear, and from that sound recording a transcript can be prepared.225

The importance of accurately transcribing those tapes cannot be overemphasised.226

Wrong transcriptions in the official transcript can pose hurdles when that record is relied on in formal submissions and by a tribunal or court. On occasions it may be necessary to

223 Foster v Mountford and Rigby Ltd (1976) 14 ALR 71 at 73.224 Foster v Mountford and Rigby Ltd (1976) 14 ALR 71 at 74-75. For background to this case

see P Toyne and D Vachon, Growing Up the Country, McPhee Gribble/Penguin Books, Melbourne, 1984, p 51.

225 In some proceedings in recent years, the court reporting service has provided small radio receivers and earpieces to some participants in proceedings and has transmitted the sounds captured by the microphone(s) so the court or tribunal and the parties’ representatives can hear more clearly what is said. The service has also broadcast the signal so that evidence can be heard on radios within a short distance of the hearing venue.

226 See G Neate ‘Proof of Native Title’ in B Horrigan and S Young (eds), Commercial Implications of Native Title, Federation Press, 1997, pp 291-292.

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substantially revise the draft transcript so that the official record is comprehensive and accurate.227

Some practical problems: The preparation of a comprehensive and accurate transcript is a demanding task, which is made more difficult by a range of factors. Indeed Justice Gray has gone so far as to suggest that the difficulties with languages and the mobile nature of hearings make the preparation of good transcript one of the most difficult tasks on earth. Further, he has stated that a transcript that is ‘replete with extraneous words and expressions, misspellings or notations of “[inaudible]” is next to useless.’228

There are, however, questions of what words and non-lexical sounds to write or omit, particularly if they are prompts or fillers such as ‘unhunh’, which punctuate what a witness says and show the interaction between examiners and witnesses. Where an Aboriginal witness pronounces words with an initial ‘h’ as a common feature of the Aboriginal English accent, should that be rendered? In such circumstances the writing of the sentence ‘No woman is allowed to eat Barramundi when they’re pregnant’ may reflect the intended meaning, whereas, to faithfully transcribe the sound as ‘No woman is allowed to heat Barramundi when they’re pregnant’ would not record the intended meaning.

Although the responsibility for producing an accurate transcript is ultimately borne by the transcriber, practical aspects of the task can be shared. It is common for linguists, anthropologists and others at a hearing to write down the spelling of unfamiliar words or phrases for use by the transcriber, or to read spellings into the record soon after the words are uttered.229 Sometimes the questioner repeats the witness’s answer before moving to the next question—a practice which is not without its difficulties but, in some cases, preferable to no such response.230

227 H. Koch, ‘Language and Communication in Aboriginal Land Claim Hearings’ in S Romaine (ed), Language in Australia (Cambridge University Press, Cambridge, 1991), has listed examples where a similar pronunciation of vowels has led to the wrong word being recorded (for example, “leave” for “live”, “he’s” for “his”, “Barney” for “Bonney”, “there” for “they”, “why” for “where”, “see” for “say”). Similar mistranscriptions can occur when witnesses fail to clearly distinguish vowels in consecutive words (“got to” for “go to”), or to pronounce the “h” in or at the start of a word (for example, “all”, for “whole”, “Andy” for “Henty”). Where Aboriginal English does not distinguish between voiced and voiceless consonants such as “g” and “k”, “b” and “p”, “d” and “t” there can be mistranscriptions (“cuts” for “guts”, “probably” for “properly”, “fruits” for “foods”). For a range of other examples of words incorrectly transcribed, and errors with respect to matters in issue, see transcripts of Aboriginal land claims to Lakefield and Cliff Islands National Parks, 21 November 1994, pp 2106-9 and further discussion of problems in transcription at pp 2110-3. See also problems arising from gaps in transcript and inaccurate transcriptions resulting from recordings in unsatisfactory conditions described by Aboriginal Land Commissioner (Olney J) in Finke Land Claim (AGPS, Canberra, 1991), para 6.10; M Walsh “Tainted Evidence”: Literacy and Traditional Knowledge in an Aboriginal Land Claim” in D Eades (eg), Language in Evidence (UNSW Press, Sydney, 1995), pp 121-124. See also papers given by B Rigsby and M Walsh at the International Association of Forensic Linguists’ Conference, University of New England, Armidale, July 1995.

228 P R A Gray ‘Taking evidence of traditional Aboriginal rights to land,’ paper presented at the Supreme Court and Federal Court Judges Conference, Adelaide, January 1995, pp 8–9.

229 See M Walsh ‘Interpreting for the transcript: problems in recording Aboriginal land claim proceedings in Northern Australia’ Forensic Linguistics 6 (1) 1999, pp 184-189.

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On occasions, it may be necessary for appropriately qualified persons to audit and correct the transcript, even when that involves extensive rewriting.231 Indeed, Professor Bruce Rigsby (a linguist and anthropologist) has suggested that the production of adequate and accurate transcripts of Aboriginal oral evidence must be a cooperative undertaking that should involve more people than the transcribers. He has recommended that there should be one or more auditors and proof readers who understand and can write the different speech varieties the witnesses use, as well as the place names, personal names and other items of local currency, and learned vocabulary. Rigsby offers two cautions about that recommended approach. First, because such a person or persons will often be associated with the claimants, there would need to be some check on their work to dispel suspicion that they have tampered with the transcript in a way that advantages the claimants. Second, a collaborative exercise of that scale can be expensive and time consuming.232

I have presided at a hearing when an anthropologist who asked questions of a witness in an Aboriginal language prepared a transcript of what was said in that language by himself as interpreter and by the witness, together with the English translation of those words.233

The issues concerning the accuracy of transcript and the adequacy of translations of transcript from another language into English are not unique to Australia. They were raised recently in the brief of evidence of Mr Ngarongo Iwikatea Nicholson provided to the Waitangi Tribunal in relation to the claim by the Ngati Toa Rangatira. Mr Nicholson spoke and wrote in Maori in a lengthy opening to his statement, then he stated:

I am now going to switch from Maori to English. I personally would have preferred to present this entire brief of evidence in Maori. However, my reason for doing this is that my experience to date of transcription and translation of Maori into English in the Courts of New Zealand has not been favourable.234

During the hearing of land claims to Lakefield and Cliff Islands National Parks in Queensland, a written submission prepared by Professor Rigsby was tendered by the claimants to highlight the difficulties in preparing a transcript which accurately renders evidence given in non-standard English or creole or in one of the local Aboriginal languages. In his submission, Professor Rigsby argued that the transcript to date:

had been underpunctuated (that is, features of punctuation that were warranted had been omitted); and

230 P R A Gray, ‘Taking Evidence of traditional Aboriginal rights to land’, paper presented at the Supreme Court and Federal Court Judges Conference, Adelaide, January 1995, p. 9.

231 See B Rigsby ‘AY267: Transcripts in two Queensland land claims’, 1999, pp 9–15.232 See B Rigsby ‘AY267: Transcripts in two Queensland land claims’, 1999, p. 15.233 See Land Tribunal, Aboriginal land claims to Mungkan Kandju National Park and

Unallocated State land near Lochinvar Pastoral Holding, May 2001, para. 95.234 Brief of Evidence of Ngarongo Iwikatea Nicholson, dated 11 June 2003, para 62, see also

para 67: ‘I have concerns due to my previous experiences … that any future record of my evidence can be guaranteed to be accurate. If the language used was Maori then I have every confidence in the Maori adjudicators and their competence. They, however, are not necessarily responsible for any translation or written record for the future’.

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had rendered evidence in Aboriginal English and creole in a manner that had distorted or changed the speakers’ meanings and intentions (for example, by rendering what was said by using similar sounding standard English expressions) or had presented them in an incomplete form,

and hence did not provide a true and accurate representation of what speakers had said.

In order to ensure that, as far as practicable, the evidence was accurately transcribed, draft transcript was checked against the audio tapes by Professor Rigsby and by counsel assisting the Land Tribunal. Agreed changes were made so that a final version could be produced.

Here is an example of where the transcriber flagged difficulty in hearing and making out the witnesses’ answer by marking it with triple question marks and the transcript was subsequently corrected by Professor Rigsby.

Original Transcript Draft dftT1424

EXAMINER: Are [Name1] and [Name2] claiming Bagaarrmugu?---He will have to – yes.

EXAMINER: Are you claiming Bagaarrugu?---No, because I am branded with murder – with murdering Lakefield???

Professor Rigsby’s Corrected Transcript Draft read as follows:

EXAMINER: Are [Name1] and [Name2] claiming Bagaarrmugu?---He’ll have to - yeah

EXAMINER: Are you claiming Bagaarrmugu?---No, because I blanta - I’m belong to Rirrmerr – Rirrmerr and Lakefield. Free translation: No, because I belong to Rirrmer Aboriginal Corporation and I come from the Lakefield Station area.

The Official Transcript fn1T1410 reads

EXAMINER: Are [Name1] and [Name2] claiming Bagaarrmugu?---He’ll have to – yeah.EXAMINER: Are you claiming Bagaarrmugu?---No, because I’m Blanta – I’m belong to Rirrmerr – Rirrmerr and Lakefield.

Where videotapes are tendered in evidence it is useful to have a transcript of the spoken words, even it if is not completely accurate. In one land claim where a videotape of an interview with an Aboriginal man (who died before the hearing) was tendered, a ‘transcript’ of the interview was also in evidence; although it was described by the

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anthropologist who prepared it as a ‘loose transcription which is both, in some parts a direct translation into English and, in other parts, a synopsis of what’s been said.’235

Even where the recording is sufficiently clear and a complete transcript is possible a degree of discretionary editing is desirable and necessary. For example, transcript quite properly does not include asides uttered by the presiding judge or tribunal member or counsel (or, indeed, privileged conversations between counsel and instructing solicitor or client) that are recorded on tape.

The limitations of transcript: However good it is, no transcript can record every relevant feature of a proceeding. The transcript ‘cannot catch the subtleties of pitch, of timing, of gesture.’236 It cannot capture the range of expressions used by witnesses, the pace at which evidence was given, the settings in which evidence was given, or the body language of the witnesses. Nor can the transcript record songs, ceremonies and displays which, unless adequately described in an appropriate way, can subsequently lose or have reduced evidentiary value.237

Even when the written record is as accurate as is practicable, the transcript may be unclear or confusing. As Justice Gray has noted, effort needs to be made to ensure that when, for example, directions are indicated by a witness, there is a note of the direction a witness is pointing. A record of a witness saying ‘that way’ will be meaningless to the reader.238 In my experience, when asked how old they were when childhood experiences occurred, many older Aboriginal witness will say they were ‘about this high’ and hold a hand at a particular height. That height is meant to be understood as indicating the age of a person of that height. Unless they are explained, or recorded in more detail, the words and gesture add little, if anything, to the written record.

Future uses of transcript: The preparation of proper transcript in one proceeding is clearly important if a just outcome is to be reached. But there is another reason for taking all reasonable efforts to ensure that transcript is accurate and complete: it provides a resource for the future. Professor Rigsby has stated that the transcripts ‘present the precious knowledge, wisdom and experience of Aboriginal elders and others who otherwise would not appear in the written record. In future, Aboriginal people and communities will want to make use of these rich cultural heritage materials for a variety of objectives of their own choosing’239, and researchers may find them a valuable resource.

235 Land Tribunal, Aboriginal Land Claims to Mungkan Kandju National Park and Unallocated State Land near Lochinvar Pastoral Holding, May 2001, para. 97, D Martin transcript 1448.

236 P R A Gray, ‘Aboriginal and Native Title Issues,’ Australian Law Librarian, 7 (1) March 1999, p. 10.

237 See G Neate ‘Proof of Native title’ in B Horrigan and S Young (eds) Commercial Implications of Native Title, Federation Press, 1997, pp 292–295.

238 P R A Gray, ‘Taking Evidence of traditional Aboriginal rights to land’, paper presented at the Supreme Court and Federal Court Judges Conference, Adelaide, January 1995, p. 10.

239 B Rigsby ‘AY267: Transcripts in two Queensland land claims’, 1999, p.15; see also M Walsh ‘Interpreting for the transcript: problems in recording Aboriginal land claim proceedings in Northern Australia’ Forensic Linguistics 6 (1) 1999, pp.188-189.

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One use might be in proceedings under the Native Title Act 1993 (Cth) that may take place years, if not decades, after land claim proceedings. That Act provides that the Federal Court may receive into evidence the transcript of evidence in any other proceedings before that Court, another court, or any other person or body, and may draw any conclusion of fact from the transcript that it thinks proper. The Court may adopt any recommendation, finding, decision or judgment of any such court, person or body.240

Where the National Native Title Tribunal is conducting an inquiry it has a similar power.241

The preservation and subsequent use of accurate transcript and other documentary records raises other, broader issues. Producing a written record of orally held knowledge captures, and potentially freezes, it at a particular point in time. This may disrupt the usual processes of change operating within an Indigenous legal system. The existence and use of such records is interfering with the processes that would normally take place, particularly if documents are used subsequently by people with agendas to run or positions of power to uphold.242

(h) The role of experts in explaining and interpreting the evidence

The role of the expert: It is common in land claim and native title proceedings for evidence to be given by persons who, because of their specialised studies and relevant experience, are qualified as experts. Those persons may play various roles in such proceedings, in addition to giving written or oral evidence to the court or tribunal. They may, for example, assist in the preparation of a ‘claim book’ or ‘connection report’ or anthropologists’ report on behalf of the claimants, or may be engaged to critically assess such documents.

Their roles in these types of proceedings have to be considered not only in terms of the evidence that they may be permitted to give but also relative to the role of claimants and their Indigenous witnesses.

On matters relating to traditional land ownership, there appears to be a distinction in the minds of some between what Justice Blackburn called ‘two kinds of witnesses, namely aboriginals…and expert witnesses.’243 As has been recognised elsewhere, however, it would be strange to think of senior Aboriginal men and women as ‘inexpert’ in their customary law while accepting as ‘expert’ opinion evidence the views of non-Aboriginal observers.244 This is not to say that all senior Indigenous people are necessarily qualified

240 Native Title Act 1993 s.86.241 Native Title Act 1993 s.146.242 See P R A Gray, ‘Aboriginal and Native Title Issues’, Australian Law Librarian, 7 (1) March

1999, p. 11.243 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 153; see also 179.244 See Australian Law Reform Commission, Reference on Aboriginal Customary Law,

Research Paper No 14, ‘The proof of Aboriginal customary law,’ pp 35 and 44; Australian Law

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to make a detailed analysis of such things as kinship structures or the nature and extent of ceremonial rights and obligations. It should also not be thought that non-Indigenous people cannot be experts in matters of Indigenous tradition. Where such people have made a systematic and comprehensive study they may have sufficient knowledge to qualify as experts and be able to analyse the material in a way which assists the court or tribunal to assess whether and to what extent native title survives.

For the purposes of this paper, it is important to note that an expert witness may assist other parties and the court or tribunal to understand, or put in context, other evidence, particularly the evidence of claimants and their Indigenous witnesses. That may be done, for example, in a claim book for the purposes of land claim proceedings245 or an anthropologist’s report for native title proceedings. In his judgment in Yarmirr v Northern Territory of Australia, Justice Olney wrote that the anthropologists’ report tendered in evidence in that native title case ‘serves the very useful purpose of providing the contextual background against which the oral testimony of the applicants’ witnesses can be better understood’.246

The contextual background may, for example, include the traditional kinship and tenure systems that operate in a particular Indigenous group or society, and the meanings and cultural settings of key words and terms in the language of those people that are essential to the communication (and possibly the ultimate success) of their case.

Useful as they are, documents such as claim books and anthropologists’ reports are not beyond criticism. When ruling on the appeals in the Yarmirr case, a majority of the High Court noted that the anthropologists’ report was received into evidence ‘without proof and without objection despite it being a document which was in part intended as evidence of historical and other facts, in part intended as evidence of expert opinions the authors held on certain subjects, and in part a document advocating the claimants’ case.’ Although, as their Honours observed, it was not suggested that ‘the mixing of these disparate elements without any evident delineation between them’, ultimately led to any insuperable difficulty in this case, they considered that ‘it is a practice which has obvious difficulties and dangers’.247

The role of the expert has many facets and continues to be examined closely. In this paper, reference is made briefly to the need for an expert to be appropriately qualified to give evidence, to suggestions of partisanship that are sometimes made in relation to expert witnesses, and to the resolution of apparent conflicts between the evidence of different witnesses.

Reform Commission, Report no 31, The Recognition of Aboriginal Customary Laws, AGPS, Canberra, 1986, paras 638-642. See also M Kew in A Mills, Eagle Down Is Our Law: Witsuwit’en Law, Feasts, and Land Claims, UBC Press, Vancouver, 1994, p xiv.

245 See Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 479 per Gibbs CJ, 484-485, 489 per Mason and Brennan JJ, 492 per Deane J, 495-496 per Dawson J.

246 Yarmirr v Northern Territory of Australia (1988) 156 ALR 370 at 400 [64].247 Commonwealth v Yarmirr (2001) 184 ALR 113 at 140-141 [84].

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Qualifications: The last three decades has seen a steadily growing number of expert witness in land rights and native title matters, primarily anthropologists. Although the practice in many land claim proceedings and native title applications has been to rely heavily on the work and evidence of anthropologists, there are other disciplines on which those involved in native title cases may wish to draw. Persons with expertise in archaeology, history or linguistics, for example, may have an important role, particularly when it is necessary to trace the links between a group and an area of land back to 1788 or some other legally relevant time long before living memory. In some cases a person who is skilled in archival research may have a significant role.

Judicial doubts about experts who thrive on forensic appearances and practice advocacy from the witness box tend not to be candidly expressed in Australia as they have been by judges in other jurisdictions.248 But the courts have stressed the need for an expert to establish his or her expertise in a particular field. Chief Justice Dixon noted in Clark v Ryan that the rule of evidence relating to the admissibility of expert testimony as it affects a case cannot be put better than this249:

The opinion of witnesses possessing peculiar skill is admissible whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it.

His Honour referred to other judicial statements to the effect that expert witnesses may give in evidence statements based on their own experience or study but they cannot be permitted to attempt to point out to the jury matters which the jury could determine for themselves or to formulate their empirical knowledge as a universal law. ‘No one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other peoples.’250 The nature and extent of a person’s academic qualifications and experience may influence the weight which will be given to the person’s evidence rather than the admissibility of that evidence.251

There may, however, be an issue of whether or not the evidence sought to be led from an expert witness is admissible in the proceedings. Such evidence may be challenged if the witness is expressing opinions with respect to matters about which the person is not

248 See J Forbes, ‘Proving Native Title,’ Samuel Giffith Society, Vol 4, Chapter 2 at pp 6–7, www.samuelgriffith.org.au where the author quotes a distinguished English judge who had stated: ‘In matters of opinion I very much distrust expert evidence, for several reasons. In the first place, although the evidence is given upon oath…the author knows he cannot be indicted for perjury, because it is only evidence as to a matter of opinion. But that is not all. Expert evidence…is evidence of persons who sometimes live by [testifying]”. Another English case revealed the scepticism the judge had with respect to expert evidence: “In the lush pastures of the common law a number of sacred cows graze. One answers to the name ‘expert evidence’…Properly cared for it could provide good progeny, but some strains are not worth encouraging.’

249 J W Smith in the notes to Carter v Boehm, Smith L.C., 7th ed. (1876) p. 577250 Clark v Ryan (1960) 103 CLR 486 at 491-492.251 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 159-161 and 177-178.

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appropriately qualified to speak. In the Canadian case of Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development252, for example, evidence was given by a ‘socio-economic consultant’ who had postgraduate qualifications in geography. Objections were taken to the admissibility of much of his evidence. The court held that neither his formal training as a geographer nor his experience in and with the Arctic and Inuit qualified him to form opinions on political, sociological, behavioural, psychological and nutritional matters admissible as expert evidence in a court of law nor was he qualified to reach economic conclusions.

Alleged partisanship: A suggestion of possible partisanship may be made, for example, because a person who has helped the applicants prepare their application is then called as an expert to give evidence in support of that case. The apprehension of partisanship may be compounded where the person is seen to assist in the preparation of questions of Aboriginal witnesses and even takes an active part in asking questions. In some instances the expert will have developed and maintained close personal friendships with some claimants.253

The court in Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development observed that one expert’s evidence ‘had more than a ring of a convinced advocate than a dispassionate professional [and] there was a lot of prognosis.’254

In De Rose v State of South Australia, Justice O’Loughlin made similar observations with respect to an expert witness called on behalf of the claimants. Whilst accepting that the expert had the relevant academic and practical experience to qualify him to give evidence as an anthropological expert (despite objections from the State of South Australia that the expert was ‘clearly inexperienced’), 255 his Honour found that he lacked neutrality in the deliverance of his evidence. In His Honour’s opinion the expert ‘became too close to the claimants and their cause; he failed to exhibit the objectivity and neutrality that is required of an expert who is giving evidence before the court. Rather, he seemed – too often – to be an advocate for the applicants.’256

The expert’s reports did not present an accurate picture of the information that the claimants had given to him and Justice O’Loughlin found that he could not rely on the expert’s evidence where it was controversial, challenged or uncorroborated by clear evidence from another reliable source.257 His Honour’s concern with the claimants’ expert was two-fold. In the first place the expert failed to report a significant piece of information that he had obtained from the claimants’ main witness and, secondly, he failed to explain why he was able to disregard what the main witness for the claimants

252 Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1971) 107 DLR 513

253 G Neate, ‘Proof of Native Title’ in B Horrigan and S Young (eds), Commercial Implications of Native Title, Federation Press, 1997 p 306.

254 Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1971) 107 DLR 513 at 538.

255 De Rose v State of South Australia [2002] FCA 1342 at [348].256 De Rose v State of South Australia [2002] FCA 1342 at [352].257 De Rose v State of South Australia [2002] FCA 1342 at [352].

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had told him when the time came to compile his report. Justice O’Loughlin therefore found that the expert’s report pointed to him having lost his neutrality and having become an advocate for the claimants.258

In Daniel v Western Australia Justice RD Nicholson contrasted the oral evidence given by one historian (which he found reflected ‘a commitment to the cause of Aboriginal people’) with her documentary evidence (which ‘did not exhibit any attitudes, and, being comprehensively researched’ he found to be ‘of considerable assistance’).259 He wrote that the demeanour of another expert anthropologist in the witness box ‘marked him more as an advocate than as an independent expert witness’.260

Some of the perception of bias or partisanship has been prompted by the terms of codes of ethics which some experts follow in carrying out their research. For example, the Revised Principles of Professional Responsibility of the American Anthropological Association, to which some Australian Anthropologists belong, states:

Anthropologists’ first responsibility is to those whose lives and cultures they study. Should conflicts of interest arise, the interests of these people take precedence over other considerations… Anthropologists…must consider carefully the social and political implications of the information they disseminate.261

This statement of ethics of the anthropological association does not of itself mean that anthropologists lack objectivity by the very nature of their discipline. It must be recognised, however, that some anthropologists may be unwilling to be engaged in the preparation and presentation of native title applications because of the prospect of possibly being placed in a situation where a breach of ethical constraints may be compelled by a court or tribunal.262

Published responses to judicial criticisms of the perceived bias of some witnesses (particularly anthropologists who have worked closely with claimant) have made the following points263:

258 De Rose v State of South Australia [2002] FCA 1342 at [357].259 Daniel v Western Australia [2003] FCA 666 at [149].260 Daniel v Western Australia [2003] FCA 666 at [233].261 American Anthropological Society (AAS) Newsletter, June 1990, 44. See also J Forbes,

‘Proving Native Title,’ Samuel Griffith Society, Vol 4, Chapter 2 at p 8.262 See G Neate, ‘Proof of Native Title’ in B Horrigan and S Young (eds), Commercial

Implications of Native Title, Queensland University of Technology, Federation Press, 1997, p 307.263 M Storrow and M Bryant, ‘Litigating Aboriginal Rights Cases’ in F Cassidy (ed.), Aboriginal

Title in British Columbia: Delgamuukw v The Queen, Oolichan Books and The Institute for Research on Public Policy, Montreal, 1992, pp 1860187; M Asch, ‘Errors in Delgamuukw: An Anthropological Perspective’ in F Cassidy (ed.) Aboriginal Title In British Columbia: Delgamuukw v The Queen (Oolichan Books and The Institute for Research on Public Policy, Montreal, 1992); B Miller, ‘Common Sense and Plain Language’, (1992) 95 B C Studies 55; D Culhan, ‘Adding Insult to Injury: Her Majesty’s Loyal Anthropologist’ (1992) 95 B C Studies 66; A Mills, Eagle Down Is Our Law: Witsuwit’en Law, Feats, and Land Claims, UBC Press, Vancouver, 1994 pp 18-22.

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(1) Simply because a social scientist is impressed with a particular tribal group does not mean that his or her research and findings are unsatisfactory. Such a person may be unable to obtain compellable evidence other than by working closely with the informants for an extended period. To disregard evidence because a witness has become submerged in a native culture presumes that the cultural experience perverts the evidence itself.

(2) It is difficult to evaluate how, as an anthropologist, one may develop social analyses that simultaneously respect Indigenous representation and also employ the tools of the discipline to critique these explanations. However, the choice is not between total acceptance and total rejection of the group’s cultural values.

(3) There are problems raised by the attempt to translate knowledge developed in an academic forum (where the debate and revision is assumed) into the adversarial forum of the courtroom where absolute ‘true or false’ answers are required in response to questions and scholars are often loath to answer in so categorical a way.

Whatever their discipline, each expert retained to give a report or evidence in native title proceedings must bear in mind the Guidelines for Expert Witnesses in proceedings in the Federal Court of Australia.264 Those guidelines state, among other things:

An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.

An expert witness is not an advocate for a party. An expert witness’s paramount duty is to the Court and not to the person retaining

the expert.

As Professor Rigsby has argued, if experts do not follow the guidelines, or if experts are shown to have disregarded or broken them, then the written reports and spoken evidence are ‘discredited and diminished’.265

Resolving conflicts of evidence: There are also occasions in native title proceedings where there is an apparent conflict of testimony between those who assert that they have native title and an expert or experts (whether called on the applicants’ behalf, by other parties or by the tribunal or court). A preliminary issue is whether there really is a conflict. It may be that the applicants’ representatives should expect that some of the written opinion evidence will appear to conflict with oral evidence obtained from applicant witnesses. Those witnesses may be knowledgeable but may lack access to or control over parts of the traditional knowledge of the group. Such a discrepancy may be between oral and written modes of knowledge transmission.266

264 These Guidelines can be found at http://www.federalcourt.gov.au/pracproc/practice_direct.html.

265 B Rigsby, ‘Anthropologists and expert evidence in native title claims’, seminar paper read at the School of Social Sciences, The University of Queensland, 8 November 2002, to mark his retirement after 25 years of service.

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Inevitably, courts and tribunals have to make choices concerning opinion evidence. In some cases the decision will be whether to accept uncontradicted opinion evidence given by suitably qualified witnesses, whilst in others it may be necessary to choose between conflicting opinions. Justice Lambert of the British Columbia Court of Appeal has cautioned that in Indigenous land litigation findings of historical fact based on historical or anthropological evidence given by historians and anthropologists should be given ‘only the kind of weight that other historians or anthropologists might give them.’ He continued:

Historians and anthropologists and other social scientists do not always agree with each other. Circumstances change and new raw material is discovered and interpreted. The tide of historical and anthropological scholarship could, in a few years, leave a trial judge’s findings of fact stranded as forever wrong.267

To assess the evidence it may be appropriate to question the experts about their research methodology, the nature and extent of their involvement in the preparation of the claim (including the proofing of some witnesses), the ethical guidelines within which each operates and the ongoing process of review of their work by other professionals within their discipline who have no connection with the claimants.268 Each application must be assessed on the totality of the evidence adduced.269 Where there is an inconsistency in the evidence, no rule can be set in advance for determining whether the claimants’ evidence should be preferred270 or the evidence of an appropriately qualified expert.271 It is the fact-finding court or tribunal that has to decide at the end of the day based on the evidence before it as to which evidence to accept and which to reject.

(i) Written and oral evidence

Another ongoing, and sometimes significant, issue is the relative weight to be given to written and oral records or accounts of events or other matters. Put bluntly, are written words more significant than spoken words?

266 M Walsh, “‘Tainted Evidence’: Literacy and Traditional Knowledge in an Aboriginal Land Claim” in D Eades (ed.), Language in Evidence, UNSW Press, Sydney, 1995, pp 117-119. See also De Rose v State of South Australia [2002] FCA 1342 at [353]-[360] where O’Loughlin J found that one of the main Aboriginal witness’s oral testimony differed from the view of the expert who was called on behalf of the claimants themselves.

267 Delgamuukw v British Columbia [1993] 5 WWR 97 at 329 [886]. He suggested that the only way around the problem is to settle the existence and scope of rights by a process of negotiation, including the use of resources of mediation and commissions of inquiry.

268 G Neate, ‘Proof of Native Title’, in B Horrigan and S Young (eds) Commercial Implications of Native Title, Federation Press, 1997, p 306.

269 See Aboriginal Land Commissioner (Olney J), Garawa/Mugularrangu (Robinson River) Land Claim, AGPS, Canberra, 1991, paras 2.18-2.21.

270 As in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 168-174 and 178-179.271 As in R v Wesley (1975) 9 O R (2d) 524 at 531-534.

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This issue arises most starkly when there is an apparent contradiction between a contemporaneous written record of some past event and the received oral history of that event.

Three High Court Justices have described as ‘impermissible’ the premise that written evidence about a subject is ‘inherently better or more reliable than oral testimony on the same subject’.272 The assessment of what is the most reliable evidence on a particular subject is ‘quintessentially a matter for the primary judge who heard the evidence’.273

In the Yorta Yorta case, the claimants sought to prove their case by calling 60 witnesses – most from the claimant group, but also two anthropologists, an archaeologist and a linguist. The primary judge described the oral evidence of many of their witnesses as ‘in some respects both credible and compelling’ but he concluded that not all of the oral evidence was of that character.274 The claimants also tendered a considerable volume of documentary material, including written observations of Aboriginal society after the first European settlers came to the area the subject of the claim. These included two books by one of the first squatters to occupy land in the claim area, and accounts of earlier travels by explorers and others through the claim area.275

One of the questions before the trial judge was the nature of the entitlement which the Indigenous inhabitants enjoyed in relation to their traditional lands in accordance with their laws and customs. When answering that question, the trial judge said that the ‘most credible source of information concerning the traditional laws and customs of the area’, was to be found in the writings of Edmund M Curr, one of the first European squatters in the region. He went on to say:

The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral tradition passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it than the information recorded by Curr.

Although that approach was challenged on appeal, the majority of the High Court held that, at least to the extent that the judge’s inquiry was directed to ascertaining what were the traditional laws and customs of the peoples of the area at the time of European settlement, the criticism was not open.276

272 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at [63] per Gleeson CJ, Gummow and Hayne JJ.

273 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at [63] per Gleeson CJ, Gummow and Hayne JJ.

274 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at [58] per Gleeson CJ, Gummow and Hayne JJ quoting Olney J.

275 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at [58], [59] per Gleeson CJ, Gummow and Hayne JJ.

276 Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 194 ALR 538 at [62], [63].

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By contrast, in the De Rose case, Justice O’Loughlin compared the content and extent of the claimants’ evidence of traditional practices with the more detailed articles and other writing of ‘better known ethnographers’ who had worked in the area in earlier decades.277

Where a proposal set out in a 1959 article by a distinguished anthropologist was ‘at odds’ with the evidence of the Aboriginal witnesses more than 40 years later, the judge decided to accept the evidence of the Aboriginal witnesses, either as an example of evolutionary traditional law or as an example of a sub-culture that was at variance with the culture or sub-culture that the anthropologist examined.278

From time to time there may be questions about whether, in the absence of written records, the oral history evidence is sufficient to satisfy a court or tribunal about a particular factual situation. The issue emerged in proceedings before the New Zealand Environment Court concerning a challenge to the proposed construction of a road link in an area that included a waahi tapu (sacred site) including swamps. Waahi tapu areas in the roading corridor had been recognised by the local authority in their District Plan and by the New Zealand Historic Places Trust.

The Environment Court heard oral evidence from three men who were accepted as koumatua holding the collective oral tradition of the iwi. Their evidence, collectively and individually, was to the effect that koiwi (human bones) are buried in the swamp(s) at Takamore and that taonga (treasures) will be buried with them, and that there will be buried separately taonga such as whare (house), old wharenui (meeting houses), and remnants of waka (canoes).279

The Environment Court acknowledged the urupa (burial ground) situated just to the east of the proposed road corridor was without question waahi tapu and must remain physically undisturbed by the carriageway or associated works. The Court rejected evidence in relation to koiwi within the swamp area on the basis that the evidence was ‘cryptic and assertive bereft of any back-up history or tradition which would cause us to give some support to the concept of swamp burials’ in the relevant area. The Court expressed surprise at the ‘sparseness’ of the evidence and said that there was nothing in the evidence to suggest burials in the wetland immediately adjacent to the urupa. It also expressed doubt about the presence of koiwi in the particular swamp area of relevance south-west and north-west of the urupa.280

In allowing the appeal against this part of the Environment Court’s judgment, Justice Young of the New Zealand High Court concluded that there was a clear need to explain why the evidence of the koumatua as to the presence of koiwi in the swamp area at Takamore was being rejected. This evidence was at the heart of the case for the Trustees. The only evidence or otherwise as to the presence of koiwi in the wetlands was likely to

277 De Rose v South Australia [2002] FCA 1342 at [292]-[305].278 De Rose v South Australia [2002] FCA 1342 at [102].279 See summary in Takamore Trustees v Kapiti Coast District Council, unreported judgment of

High Court, Young J, AP191/02, AP192/02, dated 4 April 2003, at [64].280 See summary in Takamore Trustees v Kapiti Coast District Council, unreported judgment of

High Court, Young J, AP191/02, AP192/02, dated 4 April 2003, at [62]-[66].

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be from the oral tradition of tangata whenua. ‘The presence of a written record (of whatever source) might support the oral history but its absence could hardly detract from it. Geographical precision beyond burials in the wetlands at Takamore was always going to be unlikely. These are burials that go back beyond European occupation, beyond 200 years.’ There was evidence supporting the presence of swamps in the area before European presence and reasons were given for swamp burial. Both supported the credibility and reliability of the evidence given by koumatua.281

His Honour also referred to oral evidence in relation to the particular area in the carriageway that the swamp lands had long been the resting home for his ancestors. The Environment Court described this as an assertion rather than evidence. But Justice Young observed that suitably chosen koumatua had given their evidence ‘as part of their oral tradition. If oral history is to be reduced to assertion rather than evidence, then much of the evidence by Maori in support of [specified] matters will be rejected as assertion and not evidence. This is not at all the proper approach to oral history such as this.’282

His Honour noted that the evidence did not identify each individual wetland within this limited area and say there are koiwi buried there. The evidence was that the swamp lands ‘have long been the resting place for our ancestors.’ But it was ‘difficult to see, given we are concerned with an oral history which pre-dates European presence, more specificity is reasonably possible. The area within which the koiwi are said to be buried is geographically well defined. The evidence was cryptic, but this is hardly a reason for rejecting it. Each of the three witnesses gives relevant evidence. Mr Parai gives a rationale for swamp burials (preservation and safety from marauding tribes). There is no evidence identified which the Court accepts to contradict this.’283

Although the Environment Court complained about the lack of ‘backup history’ or ‘tradition’, Justice Young said it was difficult to understand what this means.’ He continued:

Those in the iwi entrusted with the oral history of the area have given their evidence. Unless they were exposed as incredible or unreliable witnesses, or there was other credible and reliable evidence which contradicted what they had to say, accepted by the Court, how could the Court reject their evidence. The Court complained it was bereft of ‘evidence’ and had ‘assertion’ only of the presence of koiwi. The evidence was given by koumatua based on the oral history of the tribe. What more could be done from their perspective. The fact no European was present with pen and paper to record such burials could hardly be grounds for rejecting the

281 Takamore Trustees v Kapiti Coast District Council, unreported judgment of the High Court, Young J, AP191/02, AP192/02, dated 4 April 2003, at [75].

282 Takamore Trustees v Kapiti Coast District Council, unreported judgment of the High Court, Young J, AP191/02, AP192/02, dated 4 April 2003 at [78].

283 Takamore Trustees v Kapiti Coast District Council, unreported judgment of the High Court, Young J, AP191/02, AP192/02, dated 4 April 2003, at [67].

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evidence. Nor could the kind of geographical precision apparently sought by the Court be reasonably expected.284

Justice Young concluded that the Environment Court not given a rational reason for rejecting the clear evidence of the Koumatua of the presence of koiwi in the swamps of Takamore and thus potentially in the area of the proposed road.285

(j) Language and land

The interrelationship of language, people and land has a further dimension. At least some groups believe that their groups’ languages are linked to the land itself.

That concept was discussed by Justice Lee when ruling on the native title application by the Miriuwung and Gajerrong peoples to land in the north of Western Australia and the west of the Northern Territory. There was evidence in that case that elder Miriuwung and Gajerrong people observed traditional laws relating to language, such as switching to the correct language when travelling in the ‘country’ to which the land ‘belongs’, and that Miriuwung and Gajerrong languages were used for separate ‘countries’ albeit with overlapping boundaries.286

Justice Lee concluded that the role of the Miriuwung and Gajerrong languages in defining the community connected to the land of the claim area was twofold:

first, the languages were said (by witnesses for the applicants and in historical accounts) to have been deposited in the landscape of the region by Dreamtime figures; and

second, the language, like the land, becomes possessed by the Aboriginal people connected with that land.287

His Honour noted that the community is not defined by, and as, people who speak the language but by, and as, people who observe the connection of the language with the country and share possessory interests in the language. He quoted from Dr Alan Rumsey who wrote:

…in the Aboriginal myths which associate language and land, no account at all is taken of people, or peoples. Languages, or even mixtures of them, are directly placed in the landscape by the founding acts of Dreamtime heroes. From that point on, the relation between language and territory is a necessary rather than a contingent one. People too, or their immortal souls, are similarly grounded in the landscape, in the form of spirit

284 Takamore Trustees v Kapiti Coast District Council, unreported judgment of the High Court, Young J, AP191/02, AP192/02, dated 4 April 2003, at [68].

285 Takamore Trustees v Kapiti Coast District Council, unreported judgment of the High Court, Young J, AP191/02, AP192/02, dated 4 April 2003, at [69].

286 Ward v Western Australia (1998) 159 ALR 483 at 523-525.287 Ward v Western Australia (1998) 159 ALR 483 at 525. See also Daniel v Western Australia

[2003] FCA 666 at [206] per R D Nicholson J.

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children (or ‘conception spirits’) associated with specific sites, and via links through their parents to more extensive regions. But the languages were already placed in those regions before any people came on the scene. The links between peoples and languages are secondary links, established through the grounding of both in the landscape. 288

The evidence presented in that case was that the claim area was said to be Miriuwung and Gajerrong country partly because that is where the language belongs, not because it is country inhabited by people who speak Miriuwung or Gajerrong. The witnesses who identified themselves as Miriuwung or Gajerrong did so not because they, or their forebears, spoke the Miriuwung or Gajerrong languages but because those languages were part of their connection with forebears and with the land.According to Justice Lee, the:

mutual possession of a language connected with the land was an incident of identification of the community as was mutual recognition of membership of that community; mutual acknowledgement and observation of traditional law, customs and practices; and the recognition by others of the existence of the community.289

(k) Inferences for lack of evidence

One practical issue for the courts and parties in native title proceedings is what evidence is sufficient to establish the continuity of the claim group and its connection to the land back to the relevant date (being the date on which the British Crown asserted its sovereignty).

Because the Crown assumed sovereignty progressively over different parts of Australia, it is necessary to ascertain for each part of Australia the relevant date at which native title must have been in existence to attract common law recognition and from which date native title must have continued if recognition is to be given in contemporary proceedings.290

Justice Kirby, when he was President of the New South Wales Court of Appeal, stated that in New South Wales ‘the relevant starting date of factual inquiry [is] the time immediately before settlement in 1788’291 or, more precisely, 7 February 1788.292 His Honour noted that in the Mabo litigation the relevant date of inquiry was 1879, almost a 288 A Rumsey, ‘Language and Territoriality in Aboriginal Australia’ , Chapter 14 in M Walsh

and C Yallop (eds), Language and Culture in Aboriginal Australia, Aboriginal Studies Press, Canberra, 1993, p. 204. For a discussion of the applicability of Dr Rumsey’s thesis to a coastal group in far north Queensland see Land Tribunal, Aboriginal Land Claim to Ten Islands near Cape Grenville: The Wuthathi claim, 1998, State of Queensland, para 306. See also Daniel v Western Australia [2003] FCA 666 at [206].

289 Ward v Western Australia (1998) 159 ALR 483 at 525.290 For different dates on which the Crown asserted sovereignty see: G Neate, ‘Proof of Native

Title’, in B Horrigan, and S Young (eds.), Commercial Implications of Native Title, Federation Press 1997, at pp 255-256.

291 Mason v Tritton (1994) 34 NSWLR 572 at 586.

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century later, because the Crown first claimed sovereignty by annexation over the Island of Mer in 1879. He suggested that the later date may have made the claimants’ cause in Mabo easier to prove than native title proceedings in New South Wales.293

Whatever the relevant date, or the belief of those who assert that they have native title, there will be practical issues about the nature and extent of evidence sufficient to establish, for example, the identity of the Aboriginal group back to a particular date. Oral or written evidence may be available and anthropologists may be able to express an opinion about the permanence of a social group, its relationship to a particular piece of land and the likelihood that such a relationship existed in 1788.294

If probative evidence is unavailable for all of the periods, courts or tribunals may be asked to draw inferences. Justice RD Nicholson has described the issue faced by a court in these terms:

It must always be born in mind that the historical record is incomplete. There are ‘silences’. The nature of these ‘silences’ and the manner in which they should be addressed is the subject not merely of academic interest, but one that bears directly upon the approach the Court must take in order to interpret the expert and witness evidence, and to derive the inferences that of necessity must be made, in order to decide upon the issues in contention.295

The issue has faced Australian courts since the Gove land rights case.296

In Mason v Tritton, for example, the appellant’s biological descent was established back to the 1880s but there was a question of whether it could be inferred or presumed to 1788. Justice Kirby dealt with the matter in the following terms:

In the nature of Aboriginal society, their many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days, it is next to impossible to expect that Aboriginal Australians will ever be able to prove, by recorded details, their precise genealogy back to the time before 1788. In these circumstances, it would be unreasonable and unrealistic for the common law of Australia to demand such proof for the establishment of a claim to

292 Mason v Tritton (1994) 34 NSWLR 572 at 584. See also Mabo (No 2) (1992) 175 CLR 1 at 77-79 per Deane and Gaudron JJ.

293 Mason v Tritton (1994) 34 NSWLR 572 at 586. See also Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 198, where Blackburn J noted that he was not persuaded, on the balance of probabilities, that the plaintiffs’ predecessors had in 1788 the same links to the same areas of lands as the plaintiffs in that case claimed.

294 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 147-148.295 Daniel v Western Australia [2003] FCA 666 at [149].296 See e.g. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 183-184, 198, Ngalakan People

v Northern Territory (2001) 112 FCR 148 at 164-165 [52], 186 ALR 124 at 139-140 [52] per O’Loughlin J citing Ward v Western Australia (1998) 159 ALR 483 at 514, Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606, Yarmirr v Northern Territory (1998) 82 FCR 533 at 569, 156 ALR 370; Mason v Tritton (1994) 34 NSWLR 572 at 588-589.

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native title. The common law, being the creation of reason, typically rejects unrealistic and unreasonable principles…In more traditional Aboriginal communities the inference will be quite easily drawn. But, even in this case, it would seem to be common sense to draw it.297

The degree to which a court may be asked to draw inferences will depend on the evidence available in each case. In Milirrpum v Nabalco Pty Ltd, evidence in the form of explorers’ records, anthropologists’ writings and missionaries’ observations was used to supplement the oral history of Aboriginal plaintiffs.298

In the Miriuwung Gajerrong case, Justice Lee relied on evidence from historians and archaeologists to conclude that the claim area and surrounding lands were inhabited by organised communities of Aboriginal inhabitants at the time of sovereignty and that the Aboriginal communities which occupied the claim area at that time possessed native title in respect of that land.299 Having drawn that conclusion on the available evidence, his Honour stated:

Unless there is evidence to the contrary, it may be inferred that when European settlement of the claim area began some 60 years after sovereignty was asserted, the Aboriginal inhabitants then in occupation of that area were connected to the land of the claim area and with the Aboriginal people who occupied the claim area at sovereignty.300

When giving evidence in De Rose v State of South Australia, Professor Maddock suggested that a useful anthropological strategy in native title applications would be to have:

…a series of clearly focussed snapshots, each of them dated, the first having been taken at sovereignty and the last at the present day. In reality, of course, one is unlikely anywhere to be able to approximate to this ideal. Some snapshots have been lost, others are badly blurred, some show only the edge of the scene in which one is now interested and it cannot be taken for granted that the photographs were trying to record the same subject.301

In his judgment in that case, Justice O’Loughlin recognised that in reality the ideal never occurs and stated:

The Court is well aware of the difficulties facing claimants who seek to gather the historical and anthropological material that would support their application for a determination of native title. It attempts to be

297 Mason v Tritton (1994) 34 NSWLR 572 at 588-589; cf at 602-604 per Priestly JA.298 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 183-198. See also Land Tribunal,

Aboriginal Land Claim to Simpson Desert National Park, 1994, paras 253-257.299 Ward v Western Australia (1998) 159 ALR 483 at 514.300 Ward v Western Australia (1998) 159 ALR 483 at 514.301 De Rose v State of South Australia [2002] FCA 1342 at [370].

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sympathetic as possible without causing undue prejudice to any other parties to the application.302

His Honour noted that s 82 of the Native Title Act, Order 78 of the Federal Court Rules and the approach outlined by Justice Kirby in Mason v Tritton ‘may be utilized, where appropriate, to ensure that applicants are not required to meet an evidentiary burden that is, in the circumstances that are unique to every native title application, impossible to meet’.303 Later in the judgment he referred to the ‘heavy burden’ that claimants bear even if a court is prepared to make ‘reasonable assumptions in their favour’. He concluded that to place too high a burden of proof on claimants who have a wholly oral tradition that reaches back reliably no further than three or four generations ‘would be manifestly oppressive’.304

The difficulties inherent in proving facts in relation to native title proceedings when for the most part the only record of events is oral tradition passed down from one generation to another was also recognised by the majority of the High Court in Members of the Yorta Yorta Aboriginal Community v State of Victoria.305 Chief Justice Gleeson and Justices Gummow and Hayne stated:

It may be accepted that demonstrating the content of that traditional law and custom may very well present difficult problems of proof…. In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional law and custom at times earlier than those described in the evidence. Much will, therefore, turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.306

They continued

It is, however, important to notice that demonstrating the content of pre-sovereignty traditional laws and customs may be especially difficult in cases, like this, where it is recognised that the laws or customs now said to be acknowledged and observed are laws and customs that have been adapted in response to the impact of European settlement. In such cases, difficult questions of fact and degree may emerge, not only in assessing what, if any, significance should be attached to the fact of change or adaptation but also in deciding what it was that was changed or adapted. It is not possible to offer any single bright line test for deciding what inferences may be drawn or when they may be drawn, any more than it is

302 De Rose v State of South Australia [2002] FCA 1342 at [370].303 De Rose v South Australia [2002] FCA 1342 at [370].304 De Rose v South Australia [2002] FCA 1342 at [570].305 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 194 ALR 538

at 555-556 [59], per Glesson CJ, Gummow and Hayne JJ.306 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 194 ALR 538

at 561 [80].

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possible to offer such a test for deciding what changes or adaptations are significant.307

In the Yorta Yorta case the claimants had tendered in evidence, at first instance, such written material as was available and which recorded observations of Aboriginal society after the first European settlers arrived. From that evidence and other accounts of earlier travels by explorers and others through the claim area in the 1820s and 1830s, Justice Olney concluded that the inference that Indigenous people occupied the claim area in and before 1788 was ‘compelling’.308

When Justice Olney was hearing evidence in this matter, the Native Title Act provided that the Federal Court was ‘not bound by technicalities, legal forms or rules of evidence’ and was required to pursue the objective of providing a mechanism of determination that was ‘fair, just, economical, informal and prompt’. As noted earlier, subsequent amendments to s 82 of the Native Title Act in 1998 have narrowed the ‘base [that] could be built for drawing inferences about past practices.’ The Court is now bound by the rules of evidence ‘except to the extent that the Court otherwise orders.’309

Whilst the difficulty of the forensic task which may confront claimants does not alter the requirements of the Native Title Act (which the High Court has noted is the starting point of any consideration of a claim for determination of native title),310 what needs to be understood is that, for some groups, the relevant date and the evidence that needs to be adduced will be of no conceptual significance. They will assert that from an indefinite time in the past (a period which began with the creative work of spiritual ancestors, sometimes called the Dreamtime) their predecessors have continuously used the subject land as of right and that their rights are still in existence.311

(l) Limitations of the adversarial system

The issues discussed in this paper illustrate the challenges facing parties and courts, and some of the difficulties in meeting those challenges within the adversarial system.

In the De Rose case, Justice O’Loughlin pointed to examples of how the adversarial process can be ‘deficient’. As his Honour observed, the findings of fact that a court is able to make can only be based upon the evidence that was adduced during the course of a hearing. If that evidence was ‘inadequate’ to deal properly with the subject, it could mean that the findings made on that subject are likewise ‘inadequate’.312 A decision has

307 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 194 ALR 538 at 562 [83].

308 Quoted in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 194 ALR 538 at 555-556 [59].

309 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 194 ALR 538 at 561 [81].

310 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 194 ALR 538 at 561 [80]; see also 549 [32].

311 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 147, 150, 152-153 and 183. See also Aboriginal Land Commissioner (Kearney J), Upper Daly Land Claim, AGPS, Canberra, 1991, vol 3, para 30.

312 De Rose v South Australia [2002] FCA 1342 at [89].

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to be made on the evidence that counsel places before the Court, without the Court knowing whether it is the totality of the evidence that is available on the subject. According to his Honour: ‘that is, and always will be, a weakness in the adversarial system.’313

In the course of his judgment, his Honour referred to the apparent discomfort of witnesses in the context of formal court proceedings, suggesting that aspects of the evidence (some of which were unclear or confusing to the Court) may have been affected by the environment of the hearing.314

Other judges have highlighted different aspects of adversarial litigation that are ill-suited to the resolution of native title matters. Near the end of his judgment on the Yorta Yorta people’s native title application, which was unsuccessful after a trial that ran for 114 hearing days, Justice Olney wrote that the time and expense expended in the preparation and presentation of a large part of the evidence had proved unproductive, ‘a circumstance which calls into question the suitability of the processes of adversary litigation for the purpose of determining matters relating to native title’.315

Such litigation will not resolve all issues, particularly many of the practical implications of a finding that native title exists in areas where there are other legal interests. Near the end of his judgment on the Miriuwung and Gajerrong peoples’ native title application, which was successful after a trial that went for 83 days, Justice Lee wrote: ‘How concurrent rights are to be exercised in a practical way in respect of the determination area must be resolved by negotiation between the parties concerned. It may be desirable that the parties be assisted in that endeavour by mediation’.316

4. CONCLUSION

In recent decades, Australian society has had to deal with the challenges that flow from the legal recognition that, in at least parts of the country, some groups of Indigenous Australians retain links to their traditional lands and have rights and interests which have been inherited from their ancestors under their traditional laws and customs.

Various processes have been fashioned to resolve the issues that arise when one part of society recognises the rights and interests, or legitimate aspirations, of another part of society in relation to areas of land or waters.

In native title and land rights proceedings, as in much of life, language is the primary means of identifying and dealing with such issues. But there is no one language. The language of the law, ‘high’ English, Aboriginal English and various other Aboriginal languages may be involved – sometimes all at once - in exchanges about critical issues.

313 De Rose v South Australia [2002] FCA 1342 at [144].314 De Rose v South Australia [2002] FCA 1342 at [249], [428], [804], see also [743].315 Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606 at [130].316 Ward v Western Australia (1998) 159 ALR 483 at 639.

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The way language is used, which language is used, and who uses which language at particular points or phases in proceedings, may affect the outcome of an exchange – and may influence the result.

To achieve outcomes that adequately reflect the merits of each case, we must ensure that communication is effective. Communications about:

the content of the applicable laws (both traditional laws and customs and the general law of Australia)

what information is relevant and what is not relevant to the proceedings how best to marshall the relevant information and present it in an appropriate

way the relationships between people, and the relationships of people and their

traditional land

are all significant in the overall scheme.

We also need also to ensure that, when (as in the Native Title Act317) the language of the general law uses words like ‘rights’, ‘entitlement’, ‘justice’, ‘advancement’, ‘protection’ and ‘reconciliation’, and refers to an intention to ‘rectify the consequences of past injustices’ and to ensure that Indigenous Australians receive ‘the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire’ - the arguments about the content and application of the law do not become mere sophistries. As Justice McHugh has cautioned, ‘Words in legislative instruments should not be read as if they were buildings on a movie set – structures with the appearance of reality but having no substance behind them.’318

In this context the law must be more than ‘a profession of words’.319 We should not ‘love the words’ as if they are words in a play,320 nor should we treat language as if it were words in a poem where ‘you begin and end with the words alone’ or, perhaps, seek ‘a corroborative relation between a landscape and a sensibility’.321 We must guard against a fascination with language which becomes an end in itself rather than a vehicle for achieving just outcomes – and we must be wary of relishing the sound of our own voices rather than using our voices for a constructive purpose.

Those of us who have accepted the obligation to administer the law have solemnly undertaken, as a member of the National Native Title Tribunal322 or as a judge of the

317 See Native Title Act 1993 preamble.318 Yanner v Eaton (1999) 201 CLR 351 at 376 [51].319 D Mellinkoff, 1963, The Language of the Law, preface, quoted in D Crystal and H Crystal

(eds.), 2000, Words on Words: Quotations about language and languages, Penguin, p 267.320 As Dylan Thomas reportedly instructed the actors in relation to his play Under Milk Wood: A

play for voices.321 See Seamus Heaney, Finders Keepers: Selected prose 1971-2001, Faber and Faber, London,

2002, p.38.322 Native Title Act 1993 s 116.

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Federal Court,323 to ‘do right to all manner of people according to law, without fear or favour, affection or ill will’.

Whether or not we have made such a formal commitment, those of us who are involved in such work as lawyers or linguists (or in any other capacity) need to hone our skills and enhance our understanding so that the language we use is clear and comprehensive, and serves to ensure that right is done to all manner of people according to law – rather than being a barrier to discharging that obligation.

The challenges are many and the resources to be devoted to them are often inadequate or stretched. But much experience has been gained and much has been written. Those of us who have decided to meet the challenges can learn from our predecessors and from each other as we strive to achieve ‘the just and proper ascertainment of native title rights and interests … in a manner that has due regard to their unique character’.324

323 Federal Court of Australia Act 1976 s 11, Schedule.324 Native Title Act 1993 preamble.

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