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Do the Walls Have Ears? Indigenous Title and Courts in Australia

Published online by Cambridge University Press:  28 February 2019

Peter R. A. Gray
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Extract

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], 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 In truth, this inquiry is as to whether the non-indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities, incompatible with the continuing existence of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.”

Type
Research Article
Information
International Journal of Legal Information , Volume 28 , Issue 2 , Summer 2000 , pp. 185 - 212
Copyright
Copyright © 2000 by the International Association of Law Libraries 

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References

Notes

1. (1992) 175 CLR 1.Google Scholar

2. 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.Google Scholar

3. 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.Google Scholar

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21. (1991) 79 DLR (4th) 185 per McEachern CJ at p. 243.Google Scholar

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23. Ibid., at pp. 259–260.Google Scholar

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26. Ibid., at p. 504.Google Scholar

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28. (1978) 68 Cr App R 419 at p. 425.Google Scholar

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31. Ibid., at p. 158.Google Scholar

32. Ibid., at p. 161.Google Scholar

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34. “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.” B. A. Keon-Cohen, “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. 185–205, at pp. 192 & 200.Google Scholar

35. Mabo v Queensland [1992] 1 Qd R 78, per Moynihan J at p. 87.Google Scholar

36. 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” (V. Cowden, “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.Google Scholar

37. “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.” D. Bell, op. cit., at p. 34.Google Scholar

38. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Australian Government Publishing Service, Canberra, 1986.Google Scholar

39. Ibid., at p. 456.Google Scholar

40. “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.” B. A. Keon-Cohen, op. cit., at p. 193.Google Scholar

41. (1957) WALR 74.Google Scholar

42. Ibid., at p. 79.Google Scholar

43. See Evidence Ordinance 1945 (Nigeria) ss. 14, 56, 58; Eshugbayi Eleko v Officer Administering the Government of Nigeria [1931] AC 662 per Lord Atkin at p. 673.Google Scholar

44. 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).Google Scholar

45. 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 B. Harris, “Indigenous Law in South Africa - Lessons for Australia?”, James Cook University Law Review, Vol. 5, 1998, pp. 70–112, at pp. 86–95.Google Scholar

46. 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.”Google Scholar

47. Ibid., ss. 59–75.Google Scholar

48. (1974) PNGLR 410.Google Scholar

49. Ibid., at p. 447.Google Scholar

50. (1998) 83 FCR 113.Google Scholar

51. Ibid., at p. 128.Google Scholar

52. The publication of Malinowski's Mailu and Trobriand dairies 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 eg 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).Google Scholar

53. Shaw v Wolf, op. cit., at pp. 130–131.Google Scholar

54. See eg 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.Google Scholar

55. 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.Google Scholar

56. L. Hunt, “Cross Cultural Issues: Implications for Procedural Fairness,” Australian Institute of Administrative Law Forum, No. 20, 1999, pp. 13–21 at p. 17.Google Scholar

57. 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'.” Ibid., at p. 17.Google Scholar

58. See note no. 55.Google Scholar

59. R v Anunga (1976) 11 ALR 412.Google Scholar

60. See T. Neal, “The Forensic Challenge of Native Title,” Law Institute Journal, September 1995, pp. 880–883; G. Neate, “Determining Native Title Claims – Learning from Experience in Queensland and the Northern Territory,” The Australian Law Journal, Vol. 69, July 1995, pp. 510–539.Google Scholar

61. 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.Google Scholar

62. 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.Google Scholar

63. 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 New South Wales Press, Sydney, 1995, pp. 97–124 at p. 98.Google Scholar

64. Ibid., at pp. 121–122.Google Scholar

65. Wafer, J. and Green, A., op. cit., at p. 44.Google Scholar

66. Walsh, M., op. cit. at p. 98.Google Scholar