Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Commentary
Peter R A Gray[1]
Australia has always been a place of legal pluralism. Before the British colonists brought with them the common law and the statute law of England, there were indigenous systems of law. Indeed, there were very many of them. They did not cease to exist just because English law was imported. Sadly, for over 200 years, their existence was not officially recognised by the Anglo-Australian legal system.
In 1992, in Mabo v State of Queensland [No 2],[2] the High Court of Australia did more than ‘invent’ native title. It made this nation officially a legally pluralist one. The common law now recognises, and gives effect to, indigenous law with respect to land tenure and, possibly, with respect to other aspects of life and death as well.
Native title is what indigenous law says it is, no more and no less, except to the extent that non-indigenous law operates to ‘extinguish’ or ‘impair’ native title. The first inquiry in any application for a determination of native title must be as to the continuing existence of an indigenous legal system and the manner in which that legal system deals with entitlements in relation to the relevant land. If such a system survives and gives entitlement to people, it must then be asked whether non-Aboriginal law has ‘extinguished’ or ‘impaired’ those entitlements. In truth, this inquiry is as to whether the non-indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities, incompatible with the continuing existence of indigenous entitlements. The entitlements continue to exist in indigenous law, despite any ‘extinguishment’ or ‘impairment’.
A major problem is that those who function in the Anglo-Australian legal system often do not know of the existence, let alone the content, of indigenous legal systems. The legislators have resorted to time honoured methods, such as those used when courts are required to ascertain the law of a foreign country — they have cast the onus of proof on the party seeking to establish the continued existence of native title. Indigenous people have the difficult burden of proving the continuing existence and the content of the relevant indigenous legal system in each application for specific recognition of entitlements to land. Even more onerous is the requirement that this onus of proof be discharged in accordance with our system of law, except to the limited extent that our system of law can accommodate the modes of proof known to indigenous legal systems. We ask indigenous people to come within the walls of our courts to prove the existence and content of their legal systems, but are we really listening to them? Do the walls have ears? The purpose of this paper is to explore issues created by this inevitable clash between indigenous and non-indigenous modes of proof, the possible effects of insisting on the latter, and the likely impact of the results of the process on the indigenous legal systems themselves.
Although similar issues arise with respect to other areas of the law, such as criminal and family law, this paper will concentrate on the recognition of indigenous legal systems in land tenure matters. Statutory land rights systems have existed in the Northern Territory, and a number of States, for some years. The land rights process has developed in the Northern Territory over the last 23 years, since the passing of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act). While the land claims process under the Land Rights Act is fundamentally different from that of native title,[3] and one should not simply be equated with the other, they both grapple with the same difficulties in dealing with Aboriginal culture, beliefs and legal systems. In native title cases, it is therefore possible to take advantage of the experience gained in land rights claims of the manner in which indigenous legal systems have been dealt with by the Anglo-Australian legal system. In part, this paper seeks to do that.
When trying to understand an issue, I believe it is sometimes useful to adopt a mirror world approach. I like to picture a situation in which a number of pastoral leaseholders are required to prove their title to land. They are required to do so before a group of old Aboriginal people who are sitting around on the ground. As evidence, the pastoral leaseholders produce their title documents. The old Aboriginal people say these are no good. They say, ‘Where are your songs? Where are your stories? Where are your dances? Where are your body paintings? We don’t recognise these pieces of paper.’ The pastoral leaseholders object. They say, ‘But by our legal system, these prove that we hold leases over this land.’ The Aboriginal people respond, ‘Well they do not by ours. Sorry, but you have no rights to this land.’ This image provides a good illustration of the problems that arise in the collision of legal systems in Australia.
Aboriginal[4] legal systems, especially in relation to land, are based on what has been popularised among non-Aboriginal people as the ‘dreaming’. The expression ‘dreaming’ was coined by an anthropologist, W E H Stanner, to refer both to a creation era long ago and a present, supernatural world, which interacts with the natural world.[5] Dreaming stories typically include creation narratives that describe the dreaming beings participating in the formation of the landscape, the naming of its features and the imparting to humans of language, culture, song and ceremony. The dreaming beings may once have been human in form, but have assumed the identities of animals, plants, or other phenomena. The dreaming ancestors who made the landscape may now be seen in features such as rocks, waterholes, sandhills and mountains.
Dreaming tracks sometimes travel across vast stretches of land, often crossing the country of different groups of Aboriginal people. Some travelling dreamings cross the continent; others are limited to particular regions. Different groups will have affiliation to, and responsibility for, sites along sections of such dreaming tracks. Sometimes, a dreaming may travel wholly within the country of a single Aboriginal group, or be local, in the sense that it is associated with a particular site only.
It is the dreamings, knowledge of which is held in stories, songs and ceremonies, which connect people with land. The dreamings are integral to the land tenure system of Aboriginal people. They attach people to land in a way that results in the identification of the two; people are land and land is people. In contrast with the commodity view of rights to land, an Aboriginal person’s rights to land are not capable of being bought and sold, because the self cannot be traded.
Knowledge of dreamings has been used in many land claims in the Northern Territory to demonstrate spiritual affiliations and responsibility to sites and land, as required by the Land Rights Act. By Aboriginal legal systems, it is entitlement to this knowledge that constitutes proof of entitlement to land; stories, songs, dances and sacred objects relating to the dreamings are the very title deeds. Aboriginal people may wish to advance similar types of evidence in the proof of native title applications.
One of the features of the Aboriginal system of knowledge and of law is that, like any other system, it is not static, but changes over time. Aboriginal people often say that they have difficulty with the non-indigenous legal system, because the law changes. They assert that their law does not change. Indeed, this assertion is often seized upon by opponents of native title when seeking to exploit apparent inconsistencies in the evidence of a witness or different witnesses as to a particular dreaming. In reality, the significance of stories and sites changes with time and context. Different versions of the same story can develop and new phenomena that are encountered are worked into the system of belief. For example, Aboriginal oral traditions are known to include stories, including dreaming stories, featuring figures such as Captain Cook and Ned Kelly.[6] It is widely acknowledged that change is an essential part of any living knowledge system and is as much a part of literate knowledge systems as oral ones. Change does not necessarily indicate that what is said is in some way not authentic. Culture is always a living and changing thing.
It will be apparent from my description of the dreamings and their role in the relationship of people and land that Aboriginal legal systems are inextricably linked with religion. Aboriginal societies tend not to divide the spiritual and the temporal in the way that societies like the Anglo-Australian have done, particularly over the last century. It is rare for non-indigenous Australians to be called upon to explain, detail and justify in public their religious beliefs. How many of us would be prepared to withstand cross-examination on the consistency, and even the genuineness, of our beliefs? This is something many Aboriginal people will have to do if they are to pursue the recognition of indigenous title to land. Even worse, Aboriginal people often have to face considerable scepticism, both from those who profess more mainstream religions and from those who have no religious beliefs. Many people will ask, ‘How can anyone possibly believe in such mythology at the end of the 20th century?’
In non-indigenous Australian culture, information, like land, is a commodity. We regard it as proper, even necessary, to disseminate information. We accept readily that information can be traded for profit. We see ourselves as part of the ‘information revolution’ with access to almost unlimited amounts of information through the internet and advancing computer technology. New terms like ‘information rich’ and ‘information poor’, used to describe people or communities, reveal our underlying values. We tend to distrust secrecy.
Our liberal view of access to information is a major influence on the Anglo-Australian legal system, which is founded on the principle that the maximum possible amount of information should be available publicly and freely. Indeed, the notion of public, impartial and reasoned dispute resolution, on which our system is based, must be compromised were this assumption not made. Our legal system abounds with examples of this principle: discovery of documents, cross-examination of witnesses and the use of subpoenas. The circumstances in which secrecy can be protected are exceptional (such as trade secrets, national security and harm to vulnerable people, such as victims of sexual offences) or serve specific interests (such as legal professional privilege and the inner workings of government). The principles of natural justice, which our courts recognise as applicable to them and impose on other tribunals, require that a party know the nature of what is alleged, be apprised of all of the evidence and have an adequate opportunity to answer.
In Aboriginal cultures, on the other hand, knowledge is rarely open or freely available. It tends to be highly regulated and controlled according to factors such as age, kinship, descent categories, locality or gender. Eric Michaels posits that, because information is inseparable from its author in oral cultures, authorship takes on a privileged status, and a complex system of information constraints operates.[7] It is often said of Aboriginal communities that intellectual property is emphasised over material property and that knowledge is the ‘currency of Aboriginal life’.[8]
In addition to the well known distinction between information that is ‘secret’ and information that is ‘public’, Aboriginal people understand a complex system of different ‘rights’ to information that is also highly regulated. In face to face transmission, there are differences among rights to know something, to hear something, and to speak of it. These regulations apply not only to verbal information, but also to such things as design and dance. Violations of these rules amount to theft.[9]
The ownership of the right to speak is essential to communicate business, particularly 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.[10]
This complex system of information control commonly results in the fragmentation of knowledge across a community. It is common that details of community knowledge may be held only by a small number of senior people, and that no one may have the complete picture. Jim Wafer explained this fragmentation of knowledge, in the context of the North-West Simpson Desert land claim, in this way:
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.[11]
The existence of sites on or near the land which is the subject of a claim, and the relationship of claimants to those sites, is at the heart of the process of dealing with claims under the Land Rights Act. The judges who have held the office of Aboriginal Land Commissioner have adjusted the process of taking evidence in land claims to avoid or minimise breaches of the claimants’ laws as to who may receive information. For instance, restrictions have been placed on evidence of secret men’s business in many land claims. Such evidence is routinely given in sessions from which women are excluded, and restrictions are placed on the purposes for which the transcript of the evidence can be used and the classes of persons entitled to see it. In more than one land claim, women have entrusted me with some of their secret knowledge. Evidence of this knowledge was heard in sessions at which I was the only man present, the dispensation for me being a matter of practical necessity. By my direction, male counsel and anthropologists were not permitted to attend. Restrictions were placed on the transcript of that evidence.
Difficulties with respect to handling secret information do not stop with the taking of evidence. To write a report without revealing such information at all might be to fail to perform the statutory duty of the Aboriginal Land Commissioner. I have felt compelled to refer to restricted evidence in my reports dealing with land claims. I have always taken care to ensure that references to such evidence reveal as little as possible of the secret material. I have also been conscious of the disadvantage that Aboriginal people suffer from the wide dissemination even of information considered to be ‘public’. In my reports, I attempt to be non-specific about the locations of sites and the features to be found at them. I am aware that the process of inquiry and public report puts Aboriginal people in a double bind; they are placed in the position ‘of opening their knowledge up for invasive scrutiny as a necessary precursor to protecting their knowledge’.[12] There can be little doubt that the handling of native title applications in a court will be even more disadvantageous for Aboriginal people. It is relatively easy to deal with evidence in a restricted way when it is given in an administrative inquiry with a small number of parties. The task becomes more daunting when the evidence must be the subject of a trial and a judgment in a court proceeding, in which dozens, even hundreds, of people may have accepted the invitation to become parties to oppose a finding that native title exists.
Anthropologist Deborah Rose describes the difference between the Aboriginal and Anglo-Australian approaches as ‘a fundamental disjunction between different systems of law’.[13] In the non-indigenous system, everyone expects to be told everything. In Aboriginal systems, the higher levels of knowledge will be the most secret. When involved in the non-indigenous legal system, Aboriginal people will be most reluctant to reveal these higher levels. Consequently, Aboriginal people often will only yield to pressure to reveal crucial information at a late stage in proceedings, when all attempts to withhold the information have failed. The delay in releasing the information may then give rise to suspicion on the part of non-Aboriginal participants that what is being revealed is recent invention.[14]
Perhaps the greatest clash between Aboriginal and Anglo-Australian systems of knowledge is in relation to the form knowledge takes. Oral traditions and history are usually the basis of Aboriginal connection with land and, accordingly, are of major importance to land claims and native title applications. As well as the dreamings, genealogies, general historical stories and land use information will be transmitted orally in most Aboriginal communities. Yet the Anglo-Australian legal system is a ‘most prohibitively literate of institutions’.[15]
To some extent, the blanket stereotype of Aboriginal cultures as ‘oral’ and non-Aboriginal culture in Australia as ‘literate’ may give rise to a false image. There can be no doubt that, within Aboriginal societies, the literacy skills of people vary greatly. Many Aboriginal people have taken on much of what might be described as ‘literacy’. It is nevertheless possible to generalise that Aboriginal people are culturally different from non-Aboriginal people. Even Aboriginal people who have had long term education in non-Aboriginal schools and universities tend to think differently, focus on different concepts and express ideas differently from non-Aboriginal people.
In European-based cultures, the written word is primary and is often assumed to have more value than the spoken word. The whole of the Anglo-Australian legal system is in writing, or can be reduced to writing. Oral traditions are often aligned with ‘myth’ and ‘folklore’ and are immediately associated with subjectivity, whereas written ‘history’ often carries the connotation of being objectively verifiable, factual accounts of events. For example, in his early writings, Patrick O’Farrell expressed the extreme view that, as a historian, to rely on oral accounts is to ‘retreat from analysis, discipline, depth and precision — perhaps a history of the heart not the head’.[16] He regarded the spoken word as ‘consistently the looser, the less pondered variety of verbal expression’ in comparison to the written word, ‘which is likely to be more considered and precise’.[17] Oral accounts have been regarded with disfavour by some anthropologists and social scientists, as well as some historians.[18] They were often assumed to lack empirical status, and concern was expressed about the selectivity and colouring of memory as a limitation on the ‘truthfulness’ of oral accounts. As well as the issue of reliability, historians, anthropologists and other social scientists have debated the problems of representativeness and generalisation associated with the use of oral accounts within the social sciences.[19] The theoretical debate in the social sciences is reflected in the practicality of the approach of courts to indigenous oral accounts. Both theory and practice seem to indicate that there are cultures in which written records are preferred to oral accounts.
For at least 20 years, the Canadian courts have shown increasing willingness to admit and rely on evidence of oral tradition in matters involving indigenous people. Judicial recognition has been given to the difficulty faced by Canadian indigenous people in proving their systems of traditional land tenure and their membership of indigenous groups, given their oral tradition.[20]
The high water mark to date in terms of Canadian consideration of the law’s approach to the issues of reliability and representativeness of oral accounts is to be found in Delgamuukw v British Columbia.[21] The issues of the admissibility and weight of the adaawk and kungax of the Gitksan and Wet’suwet’en peoples were central to this case. The adaawk and kungax, which are somewhat analogous to the Aboriginal dreamings, were described as oral histories of a special kind, in that they contained a ‘sacred “official” litany, or history, or recital of the most important laws, history, traditions and traditional territory of a House’.[22] The importance of the adaawk and kungax is said to be underlined by the fact that they are repeated, performed and authenticated at important feasts. These oral histories were offered as proof of a system of land tenure. The trial judge found that they could not serve as evidence of detailed history, or land ownership, use or occupation. He discounted the adaawk and kungax because they were not ‘literally true’, confounded ‘what is fact and what is belief’, ‘included some material that might be classified as mythology’, and projected a ‘romantic view’ of the history of the Gitksan and Wet’suwet’en.[23] The trial judge also cast doubt on their authenticity because the verifying group was so small that they could not safely be regarded as being representative of a larger community. No weight was given to these oral histories by the trial judge, because they did not convey the ‘historical truth’, because knowledge about those oral histories was confined to the communities whose histories they were, and because those oral histories were insufficiently detailed.[24] The Canadian Supreme Court, however, rejected this reasoning of the trial judge. Lamer CJ said:
The implication of the trial judge’s reasoning is that oral histories should never be given any independent weight and are only useful as confirmatory evidence in aboriginal rights litigation. I fear that if this reasoning were followed, the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system.[25]
Lamer CJ’s comments have recently been followed by Lee J of the Federal Court of Australia in Ward v Western Australia.[26] His Honour said:
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 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: see Delgamuukw per Lamer CJ at 230. Section 82 of the [Native Title] Act affirms those principles in respect of applications for determination of native title made under the Act: see Western Australia v Ward per Hill, Sundberg JJ at 516-17.
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 circumstances application of a rule of evidence to exclude such material unless it is evidence of general reputation may work substantial injustice: see Delgamuukw per Lamer CJ at 238-9. In this proceeding the principal opponent to the claims of the applicants is the Crown in the right of the State [of Western Australia] and in the right of the [Northern] Territory. If it is accepted that the Crown is presumed to have had knowledge of relevant circumstances and events concerning the burden of native title on its land at material times and to have had access to all relevant resources, there can be no suggestion of unfairness in a trial process in which Aboriginal applicants are permitted to present their case through use of oral histories and by reference to received knowledge.[27]
It is possible that the comments of Lee J may lay the foundation for a more liberal attitude by Australian courts to the admissibility of oral records of Aboriginal people, which takes account of their oral tradition and which lives up to the promise of legal pluralism offered by Mabo. It will be interesting to see the outcome of the appeal against Lee J’s judgment, on which a Full Court of the Federal Court of Australia has reserved its judgment.
I have endeavoured to show how the spoken word is valued in the Aboriginal system of law in a way different from the Anglo-Australian legal system. What is likely to constitute the ‘truth’ in each system is determined in a different manner. This is reflected in the stark contrast between the distrust by the Anglo-Australian legal system of information received secondhand, as opposed to the status and authority accorded in Aboriginal law to information received through other people. Oral records are passed in a chain across the generations of a particular Aboriginal community to the present day. By their very nature, they constitute ‘out of court statements’, which conflict with the general rule against the admissibility of hearsay in the Anglo-Australian system of law. The rule against hearsay is one of the oldest (and most complex) rules of evidence. The rule can be explained simply:
Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.[28]
In R v Hennessey Lawton LJ said, ‘Witnesses, whether for the prosecution or the defence, are required to testify what they saw, heard, smelt or felt and not to what they know because of what they have been told.’29 While the rule excluding hearsay can apply to all kinds of assertions, whether made orally, in writing or by conduct, it represents a different approach to determining the truth from that of Aboriginal law. The Aboriginal notion is that words can constitute the truth if they can be backed by the appropriate claim to authority, such as ‘this is what my father told me’ or ‘this is what my old people told me’. These lines of authority, extending back through the generations, are precisely what give information its value and its reliability in Aboriginal systems. This is similar to the familiar Anglo-Australian attitude to the authority of texts, in which the appeal is to knowledgeable sources. The difference lies in the container of the information: in the Anglo-Australian case it is a book or other document, while in the Aboriginal case it is a person.
Common law courts have had to wrestle with the interaction between the rule excluding hearsay and the proof of indigenous oral tradition. The Gove case in 1971[30] was the first Australian case in which serious consideration was given to the issue of indigenous land title. Blackburn J was asked by some Aboriginal people who claimed title to land according to their legal system to restrain mining operations on that land, which were in contravention of that legal system. One issue was whether the Aboriginal people would be allowed to give evidence of the indigenous legal system at all. On this issue, his Honour said:
No difficulty arose in the reception of the oral testimony of the aboriginals [sic] as to their religious beliefs, their manner of life, their relationship to other aboriginals [sic], their clan organisation and so forth, provided, first, that the witness spoke from his own recollection and experience, and secondly, that he did not touch on the question of the clan relationship to particular land or the rules relating thereto. No question of hearsay is at this stage involved; what is in question is only the personal experience and recollection of individuals. The substance of this evidence had to be proved, in some manner, as an indispensable preliminary to the exposition and understanding of the system of ‘native title’ asserted by the plaintiffs.[31]
His Honour did admit as evidence certain statements, made by Aboriginal witnesses, as to what their deceased ancestors had said about the rights of various clans to particular pieces of land and the system of which those rights form part, under an exception to the rule against hearsay that applies to the declarations of deceased persons as to matters of public and general rights.[32] He also permitted evidence of anthropological opinion, stating, ‘In my opinion such evidence is not rendered inadmissible by the fact that it is based partly on statements made to the expert by the aboriginals [sic].’[33]
Questions of admissibility of knowledge handed down orally across generations were argued in Mabo before the Supreme Court of Queensland.[34] Once again, oral evidence included what had been told to the Torres Strait Islander witnesses by their old people and this evidence gave rise to hundreds of objections.35 Moynihan J admitted much of this evidence, such as statements made by Eddie Mabo’s grandfather relating to boundaries of land, but stated that further evidence would be needed for it to be accepted as truth. His Honour said:
I have little difficulty in accepting that the fact of assertions being made by persons other than a witness may be relevant and hence admissible. The evidence is not, without more, however necessarily admissible as to the truth of the matters asserted.[36]
An approach like this may require Aboriginal people to rely on documentary evidence, or expert evidence, to add weight to their oral statements.[37] Diane Bell argues that this was the case in the approach of the Royal Commission in South Australia in 1995, which inquired into the Hindmarsh Island bridge proposal and attempts by Aboriginal people to prevent the building of the bridge.[38]
The decision of the Supreme Court of Canada in Delgamuukw, and that of Lee J in Ward v Western Australia, may have opened a new chapter in the attitude of common law courts to the use of indigenous oral accounts and the operation of the hearsay rule. The recognition of the intrinsic value of oral traditions, and of oral evidence of them, might even mark the beginning of the creation of a special exception to the hearsay rule, relating to evidence of land tenure systems, and entitlements under them, in oral cultures.
If that is correct, Australian and Canadian courts will be following the lead of other former British colonies in allowing some degree of flexibility in the rules of evidence when dealing with local customs and land tenure. In its 1986 report on the subject of the recognition of Aboriginal customary laws,[39] the Australian Law Reform Commission considered the approach of other countries to the customary law of indigenous people. Local customary law is recognised in India. The Indian Evidence Act 1872 modifies the rules of evidence to enable courts to consider local custom. For instance, s 32(4) makes admissible statements with respect to any public right or custom by people who are deceased or who cannot be found. Sections 48 and 49 extend the range of people whose evidence of opinion as to local rights and customs is admissible beyond formally qualified experts (the class of persons permitted to give opinion evidence under the rules of evidence). Section 48 makes admissible the evidence ‘of persons who would be likely to know of’ the existence of a custom, such as ‘members of the tribe or family who would’ know of its existence. Furthermore, s 57 allows a court to take judicial notice of frequently proved or ‘notorious’ customs, so that they do not have to be proved by evidence in every case.
The Indian Evidence Act influenced the law of evidence in many African countries.[40] In much of Africa, traditional or historical evidence[41] is widely admissible, despite its clash with the rules of evidence. For example, in the West African case of Poh v Konamba,[42] Adamus-Bessman J accepted that traditional evidence was admissible, notwithstanding it being hearsay, ‘in support of cases in the courts involving the history and traditions of families, clans and tribes in this country’.[43] As is the case in India, evidence as to local customs, given by people with special knowledge of such customs, is widely admissible, even if the sources of that evidence are not formally qualified experts.[44] The courts in many African countries with common law traditions can also take judicial notice of frequently proved customs, rather than requiring evidence of them in every case.[45] Post-apartheid South Africa has gone so far as to state in its new Constitution that the country’s courts ‘must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law’.[46]
The resolution of the relationship between the rules of evidence and Aboriginal traditions in Australia will be particularly important now that amendments to the Native Title Act 1993 (Cth) have come into operation. These amendments make the rules of evidence applicable to the hearing of applications for determination of native title, unless the Court otherwise orders. The rules of evidence, so far as applications for determination of native title are concerned, are now to be found in the Evidence Act 1995 (Cth). An introductory note to Chapter 1 of that Act states ‘This Act sets out the federal rules of evidence’.[47] The provisions of that Act with respect to hearsay[48] are more liberal than the common law rules, but are potentially restrictive of any attempt to create new exceptions. Perhaps the solution lies in a recognition of oral traditions as a category of real evidence, not hearsay at all.
Another difficulty encountered in dealing with oral history of Aboriginal peoples lies in assessing it against inconsistent written records. The risk is that, in the event of an inconsistency, courts will automatically prefer the written record because of the preference of the Anglo-Australian legal system for the accuracy of written over oral records. Oral histories are discarded in favour of contemporaneous written records because of the suspicion that oral histories are invented or incomplete, whereas contemporaneous written records are given elevated status. An example of a negative view of oral histories, in comparison to contemporaneous written records, is found in the decision of the Full Court of the Supreme Court of Papua New Guinea in Gaya Nomgui v The Administration of the Territory of Papua and New Guinea.[49] In that case, Clarkson J stated:
The contemporary record reflects the facts as then seen by the recorder; no subsequent event can change what has been written; the only point at which the accuracy of the record can be challenged is at the time of recording.
Traditional history, on the other hand, is in addition liable to corruption as a result of the self-interest, pride, misunderstanding or mere forgetfulness of any narrator or listener.
If special weight were not given to contemporary records, there is the danger that they would with the passage of time and the disappearance of collateral supporting evidence be discarded in favour of traditional history as propounded by the last listener with the result that claims based on traditional history which would have failed when all the facts were known would succeed where knowledge of most of the facts had been lost.[50]
In the recent case of Shaw v Wolf,[51] Merkel J had the difficult task of weighing up competing oral and written accounts in determining whether certain candidates for election to regional councils of the Aboriginal and Torres Strait Islander Commission were Aboriginal. Extensive evidence was given about genealogical records in Tasmania. Historical accounts and archival records formed an important source of information about genealogy, but had to be assessed alongside oral accounts which differed from them in some respects. One such written record, created by George Augustus Robinson, the Protector of Aborigines in Tasmania for some years, was assessed thus:
In view of Robinson’s very keen scientific and missionary interest in the Aboriginal Tasmanians, the amount of time spent with them and his particular concern for the morality of Aboriginal women living with sealers and the children of these women, these journals constitute an important source of genealogical information for the 1820s to 1840s.[52]
One cause for concern may be that genealogical records kept by some missionaries are unreliable simply because of their missionary interest in Aboriginal people and their concern for the morality of Aboriginal women. Some missionaries could not accept Aboriginal polygamy, or the reality of what might have been regarded as adultery, and attributed fatherhood of children to men who were not their biological fathers. Some were concerned, for good social reasons, to attribute to Aboriginal men fatherhood of children whose fathers were really non-Aboriginal men. Some lacked understanding of complex kinship systems, which often include designations of people as ‘mother’ and ‘father’ who are not biological parents of the person concerned. Consequently, courts must be wary of ‘text positivism’ — the notion that, if a written record is constructed as accurately as possible, the author’s role dissolves into that of an honest broker, passing on the substance of things with only the most trivial of transaction costs. Indeed, it is only relatively recently that anthropology as a discipline has begun to struggle with the criticism that it is based on the false notion of ‘objective’ ethnographic accounts and that biases inherent in many of the classic ethnographies have been analysed.[53]
Merkel J in Shaw v Wolf concluded that oral accounts should not be discarded simply because there is a conflicting written account. He stated:
It was evident from much of the evidence of the respondents that oral histories and informal documentation were often not entirely consistent with the formal histories which had been widely accepted. Dr Pybus gave evidence that oral histories would certainly not be discounted by professional historians or historical researchers but that oral evidence will be more significant when it is a contemporaneous record rather than a retrospective, albeit first person, recollection, and that the historical value of such evidence may be limited if no corroboration exists.
The conflicting accounts and hypotheses raised by the different historical records demonstrate that the general historical record, particularly when relied upon to discount descent in a particular case, is not complete or reliable in all instances. Consequently, the Court is to exercise caution in acting on any general historical record or account as evidence disproving a version of history or ancestry of a particular respondent based on oral history, particularly if it has some contemporaneous corroboration.[54]
Again, the approach of the Supreme Court of Canada in Delgamuukw and of Lee J in Ward v Western Australia, recognising the nature of oral cultures, may provide us with a guide to a new approach.
In addition to these structural problems, there are practical communication difficulties between Aboriginal and non-Aboriginal people in the Anglo-Australian legal system. Prior to colonisation, there were some hundreds of Aboriginal languages in Australia. Many of them have been lost, many have only small numbers of speakers, but others are used for daily communication among significant numbers of people. Across the north of Australia, there is a widely spoken dialect designated by linguists as Aboriginal English. This dialect really represents a spectrum. At one end it shades into Kriol, a heavy form of Pidgin English and classified as a language in its own right, which is understood by very few speakers of ‘standard’ English. At the other end, in conformity with the definition of a dialect, speakers of Aboriginal English and ‘standard’ English understand each other reasonably well, although there are differences in both vocabulary and grammar, which can create communication difficulties between Aboriginal witnesses and counsel.[55] I have heard a number of Aboriginal witnesses, when asked who is to take over responsibility for particular country after they have died, say, ‘Oh, might be ... ’ and then name persons. This is a common form of indefinite expression, when the answer is intended to be definite. It is easy to see how counsel might submit, and a judge might accept, that the answer is not to be relied on, because the witness was not sure.
Because of these language complications, there are cases in which interpreters will be needed. Usually, though, the only speakers of an Aboriginal language will be people who have an interest in the outcome of the proceeding, or people who have worked so closely with them as to be outside the class of independent translators. Even where legislation provides for entitlement to an interpreter,[56] many people who might benefit from giving their evidence in their own languages and having it interpreted are not afforded interpreters. Counsel for opposing parties often object to the use of interpreters and judges tend to be resistant to them because of the inconvenience involved. Judges usually ‘lack the ability to assess language skills’.[57] In any case, the provision of an interpreter may not ensure accuracy of translation, particularly when idiomatic expressions are used.[58]
Even when interpreters are not required, there are marked differences between Aboriginal and non-Aboriginal people in communication techniques. The eliciting of information by direct questions is generally foreign to Aboriginal people; indirect discourse is preferred.[59] Looking a person in the eye and making strong assertions is considered to be confrontational, and therefore outside the bounds of proper behaviour. The propensity of Aboriginal people to answer ‘yes’ to questions put strongly has been recognised in the Northern Territory by the Anunga rules,[60] which govern the interrogation of Aboriginal suspects by police. It is considered shameful to give a direct negative in answer to a direct request. The Aboriginal preference for giving evidence in groups, rather than as individuals, has been accommodated in land rights hearings in the Northern Territory.[61] This practice is likely to disconcert some judges if used in court proceedings, because it often involves interjection, correction, and consultation as to the answer to a question. The preference for giving evidence about a particular place at that place has also influenced the conduct of land rights claims in a substantial way.
There is also a pressing need to understand different communication styles of Aboriginal cultures. People whose first language is English usually regard themselves as plain speakers. In general, what we say is what we mean, irrespective of the context in which we are speaking (although there are occasions, such as the use of irony or understatement, on which context becomes important). For Aboriginal people, context is of vital importance. Before a speaker can be understood properly, it is necessary to take account of the place at which he or she is speaking and the identity of others present. The rules concerning who is entitled to speak, if present, are very significant. They are also complex. Often the answer ‘Don’t know’ serves as a useful device to prevent shame, embarrassment or explanation, but often it is construed to mean that the witness does not know. Failure to understand these differing styles can lead to gross miscarriages of justice.
When the Native Title Act 1993 (Cth) was first enacted, it provided that in conducting proceedings the court must take account of the cultural and customary concerns of indigenous people and was not bound by technicalities, legal forms or the rules of evidence. As a result of the amendments introduced by the Native Title Amendment Act 1998 (Cth), the court is now bound by the rules of evidence, except to the extent that the court otherwise orders, and may take account of the cultural and customary concerns of indigenous people, but not so as to prejudice unduly any other party. It remains to be seen whether the current provisions will disadvantage indigenous people significantly in the presentation of their cases.
During a land claim hearing or native title application, Aboriginal oral accounts are transformed into written documents, first in a transcript of proceedings, then in a report (in land claim matters) or a judgment (in native title applications). The underlying concern is one of control of Aboriginal knowledge. The transformation of an oral product into a written one can separate information from its authors and have enormous ramifications for Aboriginal people, because the information can be distributed more generally and will remain in a more permanent form.[62]
A transcript is compiled using tape recordings of the evidence. Other than a videotape of the entire hearing, the production of a transcript is considered to provide the best record of the evidence available for lawyers involved in the case and the decision-maker. It is well known that no transcript can ever be so detailed and precise as to convey the full context of spoken interaction. It is not possible to record on paper pitch, timing and gesture. The particular difficulties of obtaining transcript that reflects accurately evidence given in Aboriginal English, Kriol or an Aboriginal language, have been highlighted by two Australian anthropologists and linguists: Professor Bruce Rigsby (during the hearings of Lakefield and Cliff Island National Park land claims in Queensland in 1995)[63] and Dr Michael Walsh (regarding the Kenbi (Cox Peninsula) land claim hearing in the Northern Territory).[64] The process of transcribing evidence is particularly unsuited to the performance of songs and dances as evidence, which is at the very heart of proof of title according to Aboriginal legal systems.
The production of a transcript inevitably involves some element of selection by the transcriber, due to factors such as a number of people speaking at once and the making of asides. Without any intention of distorting the record, for the sake of comprehensibility what is said is often ‘normalised’ in a written form.[65] Even those decisions regarding punctuation that must be made by the transcriber can affect the style, flow and meaning of a person’s words. The transcript is then regarded as containing the ‘true’ version of the evidence of each of the persons. These difficulties are present whenever evidence is transcribed. They are more acute when the transcriber and the witness come from different communication cultures. If witnesses give subsequent evidence different from the transcribed version of what they have said earlier, the later evidence is likely to be characterised as recent invention.
What becomes of the tapes recorded in the process of producing a transcript has also created a complex issue. The Aboriginal Land Commissioner engages transcript providers on a ‘contract’ basis. It is undesirable that the Commissioner, or a court, should have direct control over the production of transcript, lest there should be allegations of tampering. Once the tapes are more than one year old, the transcript provider has authority to destroy or erase them under the Archives Act 1983. During my term as Aboriginal Land Commissioner, I received a proposal from a transcript provider that some tapes might instead be placed in the custody of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), for the purpose of preserving the audible version of the evidence for future researchers. I sought and received submissions from both the Northern Land Council and the Central Land Council, both of which favoured the preservation of the tapes in the custody of AIATSIS on condition that access to them be subject to the approval of the Aboriginal Land Commissioner. AIATSIS accepted custody of the tapes on this condition. Part of the process of the production of transcript involves filtering out matters that are audible on the tape but are not part of the evidence. Many of these are asides by counsel to solicitors or others instructing counsel. These communications are the subject of legal professional privilege, which means that they cannot be revealed to anybody without the waiver of the privilege by the client. In a land rights claim, the client might be a large group of people, the precise make up of which is not easily ascertainable. Waiver of privilege is unlikely to be practicable. On the other hand, the client might be the Attorney-General for the Northern Territory, who might be reluctant to waive privilege without knowing the content of the privileged communications. No one could listen to the tapes for the purpose of hearing the privileged communications which he or she is entitled to hear without hearing those which he or she is not entitled to hear. It is not possible for any researcher to listen to the tapes without hearing the privileged communications. As a result, the practical use of the audible record for future research seems unlikely.
The transcript itself will be likely to be in demand in relation to other proceedings with respect to the same, or neighbouring, areas of land. In most land claims in the Northern Territory parts of the transcript have been the subject of directions by Commissioners that they not be used or revealed for purposes other than the particular land claim, or that they not be revealed other than to adult males, or adult females. These directions are made in an attempt to respect the requirements of Aboriginal legal systems as to the persons entitled to knowledge. It is a criminal offence to knowingly disobey a direction of an Aboriginal Land Commissioner. In one land claim which I heard I was invited to sign a notice equivalent to a subpoena, directed to the Queensland Land Tribunal, requesting production of all of the transcript of, and documents tendered as exhibits in, a proceeding relating to land adjacent to that claimed. I made it clear that I would not sign such a notice with respect to any document subject to restrictions imposed by the Land Tribunal. Courts and tribunals dealing with native title issues will have to deal with requests to compel the production of evidence made subject to restrictions in other proceedings. There will be tension between the considerations that led to the restrictions being imposed in the earlier proceeding and considerations of natural justice in the later proceeding.
The publication of the reports of Aboriginal Land Commissioners has also presented some difficult issues. These reports are directed to the Minister for Aboriginal and Torres Strait Islander Affairs. They are tabled in parliament and published as public documents. They contain findings as to the identity of those found to be traditional Aboriginal owners of the land claimed, according to a statutory definition of that term, and recommendations that the claimed land be granted to an Aboriginal Land Trust. They contain genealogical information and information regarding spiritual affiliations of the claimants to sites on and near the land claimed, including information regarding dreamings.
There can be no doubt that after publication these reports have a life of their own. They may be accorded value and significance beyond their intent and purpose. For example, findings as to those who are (and perhaps those who are not) ‘traditional Aboriginal owners’ become highly public and certainly have an impact within Aboriginal communities. They may add to the political clout that certain individuals wield within the community, and diminish that of others. In this way, and perhaps other ways, the oral tradition is transformed by the written one it originally created. Aboriginal people, as well as Anglo-Australians, may come to indulge in text positivism, and might treat the written version as orthodox.
The transformation of an oral history into a text impacts on the usual processes of change and continuity evident in oral cultures. Wafer, discussing ‘traditions’ in Arrernte culture, states:
Aboriginal traditions in general have not been systematised by the kinds of processes that written records make possible, through the juxtaposition and comparison of different versions of the tradition. There is no canonical version of Arrernte traditions, comparable to the canonical books of western theology. The creation of a canon requires written records, so that different versions of the traditions can be compared, a single version elevated to the status of orthodoxy, and other variants declared secondary or heterodox.[66]
The processes of colonisation have already impacted on Aboriginal systems of knowledge in many ways, often adding greatly to the fragmentation of knowledge through the massive disruption to the social system, decimation of community populations, and dislocation of peoples from their land and kin. Today there remains a possibility that creating a fixed record of Aboriginal traditions at a single point in time, in a land claim hearing or in a native title application, may well disrupt the Aboriginal knowledge system even further. Walsh has a more optimistic view; he argues that the substantial written record created from Aboriginal oral evidence in the land claims process is already being incorporated within Aboriginal knowledge systems:
Traditional knowledge had a degree of flexibility over the generations. Literacy and the land claim process have a tendency to fix traditional Aboriginal knowledge in a way that breaks with tradition; or, rather, the widespread use of literacy may be contributing to a new kind of traditional knowledge in which the words remain fixed but the interpretation of those words gradually shifts.[67]
In the process of a land claim or a native title application knowledge may in fact be consolidated and the value of this knowledge asserted and recognised. Whether the result be positive or negative, it is clear that there will be some effect on the content of indigenous legal systems from the publication of findings as to the content of those systems.
Despite the pioneering work done in Northern Territory land rights claims, the Australian non-indigenous legal system is only at a very primitive stage in its approach to indigenous legal systems. Working out a satisfactory approach to ascertaining the content of an oral tradition will not be easy. Doing so without having significant effects on indigenous legal systems themselves will be even more difficult. Only by recognising differences and determining to accommodate them to the greatest possible extent can we hope to succeed. ?
[1] A judge of the Federal Court of Australia, a deputy president of the National Native Title Tribunal 1994-1999, and Aboriginal Land Commissioner 1991-1997. I am indebted to my former associate, Ms Zoe Ellerman, and to my current associate, Mr Murray Watt, for their careful research, ideas, and considerable work on drafts of this paper. Responsibility for any errors is mine alone. This paper was delivered at the 18th International Association of Law Libraries Course on International Law Librarianship held in Melbourne in September 1999. The paper is to be published in a forthcoming issue of the International Journal of Legal Information, and is reproduced here with the permission of the editors.
[2] [1992] HCA 23; (1992) 175 CLR 1.
[3] Native title is a matter of recognition by the law of indigenous ownership of land, as a burden on the ‘radical title’ of the Crown. Land rights involves the granting to indigenous people of rights in land, on the assumption that ownership of that land has been taken from them by the Crown.
[4] My switch from the use of the term ‘indigenous’ to ‘Aboriginal’ at this point is not a lapse. Unfortunately, my knowledge of the cultures of Torres Strait Island peoples is almost non-existent. What follows is based to a considerable extent on my six years of experience as Aboriginal Land Commissioner, dealing with land claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). I have also relied on the writings of others, which deal mainly with the indigenous peoples of the mainland, appropriately described as ‘Aboriginal’ peoples.
[5] Stanner W E H, White Man Got No Dreaming Australian National University Press, Canberra 1979, pp 23-40.
[6] Rose D B, ‘Cross-cultural management of knowledge in proof of native title’ unpublished paper delivered at the 1995 Supreme and Federal Court Judges’ Conference, Adelaide; Rose D B, Dingo Makes us Human: Life and Land in an Australian Aboriginal Culture Cambridge University Press, Cambridge 1992, pp 2, 18, 29, 33, 145, 187-192, 195-202, 205, 208, 229, 231.
[7] Michaels E, ‘Constraints on Knowledge in an Economy of Oral Information’ Current Anthropology, vol 26, no 4, 1985, pp 505-510.
[8] Michaels E, Aboriginal Invention of Television in Central Australia 1982-1986 Australian Institute of Aboriginal Studies, Canberra 1986, p 2. See also Sansom B, The Camp at Wallaby Cross Australian Institute of Aboriginal Studies, Canberra 1980, p 20.
[9] Michaels, E, above note 8, p 4.
[10] Michaels, E, above note 8, p 4. See also Sansom B, above note 8, p 26; Brock P, ‘A History of the Andyamathanha of the North Flinders Ranges: Methodological Considerations’ Oral History Association of Australia Journal, vol 7, 1985, pp 68-77 at p 71.
[11] Wafer J and Green A, The Simpson Desert Land Claim; Area 1: the North-West Simpson Desert Central Land Council, Alice Springs 1989, pp 44-45.
[12] Rose D B, ‘The Public, the Private and the Secret Across Cultural Difference’ in Finlayson J and Jackson-Nakano A (eds), Heritage and Native Title: Anthropology and Legal Perspectives AIATSIS, Canberra 1996, p 113.
[13] Rose D B, ‘Whose Confidentiality? Whose Intellectual Property?’ in Edmunds M (ed), Claims to Knowledge, Claims to Country: Native Title, Native Title Claims and the Role of the Anthropologist AIATSIS, Canberra 1994, p 1.
[14] It is possible that this is the very issue which gave rise to the Hindmarsh Island bridge controversy. See Bell D, Ngarrindjeri Wurruwarrin: A World That Is, Was and Will Be Spinifex Press Pty Ltd, Melbourne 1998.
[15] Rowse T, After Mabo: Interpreting Indigenous Traditions Melbourne University Press, Carlton 1993, p 5.
[16] O’Farrell P, ‘The “Great Oral History Debate” Revisited’ Oral History Association of Australia Journal, vol 5, 1982-3, pp 3-9 at p 8.
[17] O’Farrell P, above note 16, p 5.
[18] See for example Boas F, ‘Recent Anthropology’ Science vol 98, 1943, pp 311-314 & 334-337; Mandelbaum D G, ‘The Study of Life History: Gandhi’ Current Anthropology vol 14, no 3, 1973, pp 177-206.
[19] See for example Langness L, The Life History in Anthropological Science Holt, Rinehart and Winston, New York 1965, pp 9-10.
[20] See Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development (1979) 107 DLR (3rd) 513 per Mahoney J at 540 and Simon v R (1985) 24 DLR (4th) 390 per Dickson CJC at 407.
[21] Delgamuukw v British Columbia began in the Supreme Court of British Columbia before McEachern CJ: (1991) 79 DLR (4th) 185. The plaintiffs appealed the decision of the trial judge to the Court of Appeal of British Columbia: (1993) 104 DLR (4th) 470. This appeal was dismissed and the plaintiffs then appealed to the highest court in Canada, the Supreme Court of Canada: (1997) 153 DLR (4th) 193.
[22] (1991) 79 DLR (4th) 185 per McEachern CJ at 243.
[23] At 244-248.
[24] At 259-260.
[25] Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at 236.
[26] [1998] FCA 1478; (1998) 159 ALR 483.
[27] At 504.
[28] Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 969.
[29] (1978) 68 Cr App R 419 at 425.
[30] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.
[31] At 153.
[32] At 158.
[33] At 161.
[35] ‘During the trial, Queensland objected on many occasions to the reception of such statements, on a variety of grounds, for example, ultimate conclusion; a prior inconsistent statement; similar fact evidence; hearsay upon hearsay; mere assertion; and frequently, hearsay. For example, Eddie Mabo, the first witness, gave evidence-in-chief spread over 10 days which was recorded in 536 pages of transcript. His evidence attracted 289 objections from Queensland’: Keon-Cohen B A, ‘Some problems of proof: the admissibility of traditional evidence’ in Stephenson M A and Ratnapala S (eds), Mabo: A Judicial Revolution University of Queensland Press, St Lucia 1993, pp 192 & 200.
[36] Mabo v Queensland [1992] 1 Qd R 78, per Moynihan J at 87.
[37] Various solutions are often proposed to deal with this problem of the truth or falsity of oral accounts. General tests of credibility, honesty, and internal consistency are favoured, along with the search for corroboration from a written source. These solutions all focus on ensuring that oral sources conform to some standard of ‘objectivity’, that is, that they can be substantiated by another source. Interestingly, after examining these issues, one author concluded that an oral narrative’s ‘reliability’ may be better understood if ‘the scholar invests in some fair knowledge of the informant’s cultural milieu, which includes the political system in which he lives [because] the factor which most imparts bias and imposes limitations is the political system’: Cowden V, ‘Historiography and oral history: a plea for reconciliation’, Oral History Association Journal vol 5, 1982/3, pp 35-40. That is, you need knowledge of the system that produced them properly to assess and understand oral accounts.
[38] ‘The Royal Commission found fabrication in the oral accounts of the proponent women. In so doing it tapped into modes of contesting Aboriginal oral claims about sacred sites that have been well honed over the past few decades. Firstly, without any independently generated written documentation, a claim is open to the challenge that “it is all made up to frustrate development”. “No texts; no sites” was the mantra of the Royal Commission’: Bell D, above note 14, p 34.
[39] Australian Law Reform Commission (ALRC), The Recognition of Aboriginal Customary Laws Australian Government Publishing Service, Canberra 1986.
[40] ALRC, above note 39, p 456.
[41] ‘Traditional or historical evidence’ has been defined as ‘evidence as to rights existing beyond living memory which may be admitted to prove title, particularly title to family land where oral tradition is the only evidence available’: Keon-Cohen B A, above note 35, p 193.
[43] At 79.
[44] See Evidence Ordinance 1945 (Nigeria) ss 14, 56, 58; Eshugbayi Eleko v Officer Administering the Government of Nigeria [1931] UKPC 37; [1931] AC 662 per Lord Atkin at 673.
[45] Angu v Attah (1916) Gold Coast Privy Council Judgments (1874-1928) 43; Evidence Ordinance 1945 (Nigeria) s 14(1); Evidence Act (1964 Revision) (Kenya) s 60(1); Law of Evidence Amendment Act 1988 (South Africa) s 1(1).
[46] Constitution of the Republic of South Africa Act 1996 s 211(3). One important example of legislation to which this constitutional requirement to apply customary law is subject is the South African Bill of Rights. For a good discussion of the interaction of South African customary law and the Bill of Rights, see Harris B, ‘Indigenous law in South Africa — lessons for Australia?’ James Cook University Law Review vol 5, 1998, 70 at 86-95.
[47] Section 3(2) of the Evidence Act 1995 (Cth) states: ‘Notes included in this Act are explanatory notes and do not form part of this Act.’
[48] Sections 59-75.
[50] At 447.
[52] At 128.
[53] The publication of Malinowski’s Mailu and Trobriand diaries in 1967 is widely credited as the major catalyst for the reassessment of the ‘objective’ and ‘scientific’ nature of ethnography. The fieldwork practice recorded in Malinowski’s diaries simply did not fit with the methodological exhortations outlined in his 1922 publication, Argonauts of the Western Pacific; see, for example, Clifford J and Marcus G, Writing Culture: the Poetics and Politics of Ethnography University of California Press, Berkeley 1986, p 14, and Geertz C, Works and Lives: the Anthropologist as Author Stanford University Press 1988, pp 22-23.
[54] Shaw v Wolf (1998) 83 FCR 113 at 130-1.
[55] See for example Eades D, ‘They don’t speak an Aboriginal language, or do they? Language use in Aboriginal identity and cross-cultural communication’ in Keen I (ed), Being Black: Aboriginal Cultures in ‘Settled’ Australia Aboriginal Studies Press, Canberra 1988, pp 97-116; Eades D, Aboriginal English and the Law: Communicating with Aboriginal English Speaking Clients, A Handbook for Legal Practitioners Queensland Law Society, Brisbane 1992; Eades D, ‘Aboriginal English in Court’ Judicial Review vol 1, no 4, 1994, pp 368-378; Eades D, ‘Cross-examination of Aboriginal children: the Pinkenba case’ Aboriginal Law Bulletin vol 3, no 75, August 1995, pp 10-11.
[56] For legislation concerning the provision of an interpreter see: Crimes Act 1914 (Cth) s 23N; Evidence Act 1995 (Cth) s 30; Evidence Act 1995 (NSW) s 30; Evidence Act 1986 (SA) s 14; Evidence Act 1977 (Qld) s 131A; Magistrates’ Court Act 1989 (Vic) ss 40 & 103(5); Victorian Civil and Administrative Tribunal Act 1988 (Vic) s 63; Children and Young Persons Act 1989 (Vic) s 22 and Evidence Act 1971 (ACT) s 63A.
[57] Hunt L, ‘Cross cultural issues: implications for procedural fairness’ Australian Institute of Administrative Law Forum no 20, 1999, 13 at 17.
[58] Lesley Hunt notes examples of the difficulties of translating given by Kirby P of the New South Wales Court of Appeal (as he then was) in a speech at a conference on ‘Interpreting and the Law’. These included an interpreter translating the phrase ‘out of sight, out of mind’ as ‘invisible idiot’ in a witness’s first language and a case where an accused ‘was committed to a psychiatric institution for observation, because when the magistrate had asked ... how he felt, he used an expression which when translated literally meant “I am the God of Gods”. However this expression in his first language was a colloquialism for “I am on top of the world”’: Hunt L, above note 57, p 17.
[59] See Eades D, above note 55.
[60] R v Anunga (1976) 11 ALR 412.
[61] See Neal T, ‘The forensic challenge of native title’ Law Institute Journal September 1995, pp 880-883; Neate G, ‘Determining native title claims — learning from experience in Queensland and the Northern Territory’ The Australian Law Journal vol 69, July 1995, pp 510-539.
[62] In 1996 I received a proposal from a legal adviser of the Northern Land Council that these reports should be made available on the internet. This was a proposal about which I had reservations and I sought confirmation from both the Northern Land Council and the Central Land Council. While I received no reply from the Northern Land Council, the Central Land Council was opposed to their publication on the internet.
[63] Rigsby B, ‘Aboriginal Evidence and the Transcript in Two Queensland Land Claims’ unpublished paper presented at the Forensic Linguistics Conference, University of New England, August 1997.
[64] Walsh M, ‘“Tainted Evidence”: literacy and traditional knowledge in an Aboriginal land claim’ in Eades D (ed), Language in Evidence: Issues Confronting Multicultural Australia University of NSW Press, Sydney 1995, p 98.
[65] Walsh M, above note 64, pp 121-122.
[66] J Wafer and A Green, above note 11, p 44.
[67] M Walsh, above note 64, p 98.
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