Hughston, Vance --- "A practitioner's perspective of native title" [2009] ALRCRefJl 9; (2009) 93 Australian Law Reform Commission Reform Journal 28

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A practitioner’s perspective of native title

By Vance Hughston SC*

The passage of the Native Title Act 1993 (Cth) (NTA) created expectations among the nation’s Indigenous people but those expectations have often not been met.

Each native title case depends on its own facts and the history of its claimants’ and their ancestors. This can lead to what appears to be unequal treatment as between different claimant groups. For example, where the land and waters concerned are remote and of little economic value, consent determinations are readily agreed to by government on the basis of comparatively modest evidence. For those native title claimants and the government parties involved, the system for resolving native title claims could be said to have worked well. Where, however, the land and waters concerned are in more settled areas or— although remote—are economically valuable, different considerations will apply. These are the claims which are likely to be opposed and to proceed to a contested hearing. These are the claims that place a heavy burden on the financial and human resources of the principal parties involved and, in particular, on the limited resources of native title applicants.

Applications for determination of native title under the NTA are proceedings commenced and conducted in the Federal Court. The filing of an application is the first step in what may become major contested litigation in which the applicants must prove each element required to establish the existence of native title. Furthermore, although the Court has a discretion, the rules of evidence will generally apply.¹ In North Ganalanja Aboriginal Corporation v Queensland, ² five Justices of the High Court stated in a joint judgment that the issues of fact raised by a native title claim were complex and in the event of opposition would be likely to take significant time and resources to determine. Such has proved to be the case.

The major problem with the system for resolving native title claims is not hard to identify. It is the significant time and resources needed to resolve those native title claims which are opposed by government and other respondents. The problem is compounded by the limited physical capacity of most representative bodies, the scarcity of financial resources and the small number of experienced lawyers and anthropologists who are available to work on native title claims.

The significant amount of time and resources required to prepare and prosecute a native title claim is largely a result of the substantive law. In particular, the substantive law requires native title claimants to prove substantial continuity in the acknowledgment and observance of traditional laws and customs and the continued existence of the rights and interests which derive from those laws and customs from sovereignty through until the present day. This imposes a significant forensic burden on native title claimants. Clearly, the collective memory of those living today will not extend back to anything like sovereignty or the time of first contact. Extensive (and expensive) expert evidence is generally required to address this gap. In native title cases—unlike other cases in the Federal Court’s civil jurisdiction—Indigenous witnesses are often required to give all or at least much of their evidence orally. This practice adds markedly to the time which it takes to hear a native title claim and hence also to the cost of the hearing.

The Federal Court has consistently recognised that in all native title cases, the evidence of the Indigenous witnesses will provide the most compelling evidence.³ In Sampi v Western Australia, French J said that the Aboriginal evidence about their traditional laws and customs and their rights and responsibilities with respect to land and waters, ‘is of the highest importance. All else is second order evidence’.⁴ Although it is the best evidence, it can also be the most difficult to prepare and present. In my experience, Aboriginal people, whether living in remote or settled areas, are invariably reticent about divulging cultural and personal information to strangers. Many older people in particular may conceal or downplay the significance of traditional beliefs and practices when talking to those who are not Indigenous. There is still a fear of possible ridicule or worse, if traditional beliefs and practices are revealed to non-Aboriginal people. Sensitive information is generally only imparted gradually, over time. Several lengthy visits will be required to take a statement from a witness and to explain to that witness what it is that the Court will require of him or her.

All practitioners who work in the area of native title are aware of the practical realities of resource limitation on all parties in native title litigation. In particular, there are only limited human and financial resources available to applicants to prepare and present their claims. In those circumstances, it is important that those funds which are available are used in a way which will best ensure that Indigenous witnesses are properly and adequately proofed and are otherwise prepared to give their evidence. It is important, too, that practitioners give attention to ensuring that the Indigenous evidence is given in a manner that is both efficient and effective. In this respect it is far easier on the witness and will save considerable Court time if all or most of a witness’ evidence in chief can be reduced to the form of a detailed written statement.

There appears, however, to be a strongly held belief among many practitioners that for Indigenous evidence to be given any weight, it must be given orally. Accordingly, many native title cases are conducted as common law trials. Directions are made for the filing of substances of the Indigenous witnesses’ evidence and at the hearing the Indigenous evidence is adduced orally. When one bears in mind the complexity and the breadth of the issues which must be covered in an Indigenous witness’ evidence— and adds to this the fact that many of those witnesses are likely to be elderly, in frail health and possess little formal education—the difficulties which they face in giving lengthy oral evidence should be obvious. Those difficulties are compounded by the fact that each of the principal respondents is generally separately represented and, as such, is entitled to object to questions put in examination in chief and to cross-examine.

In other cases, a modified version of the above practice has been adopted. Under this modified practice, the applicants are ordered to file and serve detailed statements from the Indigenous witnesses as opposed to substances. The respondents are then afforded a right to say which parts of a witness’ statement can be admitted into evidence and which parts cannot. Those parts of a witness’ statement that have been objected to by the respondents are excluded from the evidence and must be led orally. In effect, the respondents obtain the benefit of receiving a detailed signed statement from each witness, while maintaining a right to pick and choose which parts of that statement can be admitted into evidence. The contents of the signed statements can be used as the basis for the cross-examination of the Indigenous witnesses.

This insistence upon Indigenous witnesses giving all or much of their evidence orally is at odds with the Court’s usual practice in its civil jurisdiction. The practice routinely followed in the civil jurisdiction of the Federal Court is to have a witness adopt his or her statement as true and correct, and then to admit that statement into evidence. As Weinberg J observed in Platcher v Joseph:

‘The approach of calling a witness to adopt a previous statement as true and correct is routinely followed in this Court. Indeed that approach is expressly contemplated by s 37(3) of the Evidence Act 1995 (Cth) which allows a written statement or report to be tendered or treated as evidence in chief of its maker, pursuant to Rules of Court.’⁵

In Bennell v Western Australia, ⁶ the Court in taking the Aboriginal evidence followed the Court’s standard approach in civil litigation of permitting the Aboriginal witnesses to adopt their witness statements as true and correct and then admitted those statements into evidence. The Court did, by way of modification to the usual approach, allow counsel for the applicants to ask a brief series of questions which were designed to put the witness at his or her ease and to bring out the main points of their evidence. The Court observed that this procedure worked well.⁷ The Court heard the evidence of all 30 Aboriginal witnesses and inspected a number of sites during a total of 11 days ‘on-country’ hearings. The expert evidence was then heard immediately after the Aboriginal evidence without any lengthy adjournment in between. Collectively, these procedures provided for a shorter and more efficient hearing of native title connection issues than is usually the case.

Although it is important that Indigenous witnesses continue to be able to give their evidence on their traditional country and under circumstances which take account of their cultural and customary concerns⁸, it is also important that they not be treated any less favourably than non-Indigenous witnesses. The time and money presently spent in adducing lengthy evidence in chief from Indigenous witnesses could be better spent in preparing the case for hearing and in particular in ensuring that the Indigenous witnesses are fully proofed and prepared to give their evidence and to be cross-examined on that evidence.

* Mr Vance Hughston SC came to the New South Wales Bar in 1982 and took silk in 2001. Since 1994, he has been involved on an almost continuous basis in advising on and in appearing at the hearing of native title claims in NSW, Queensland, Victoria, Western Australia, and the Northern Territory at both trial and appellate level.

Endnotes

1 Native Title Act 1993 (Cth) s 82(1).

2 North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 596, 614.

3 See for example, De Rose v South Australia [2002] FCA 1342 (O’Loughlin J, [351]).

4 Sampi v Western Australia [2005] FCA 777, [48].

5 Platcher v Joseph [2004] FCA FC 68, [163].

6 Bennell v Western Australia, [2006] 153 FCR 120.

7 Ibid, [52].

8 See Federal Court Rules, Div 6, O 78.