Aboriginal Law Bulletin --- "Land Claims - An Interview with Mr Justice Toohey" [1982] AboriginalLawB 4; (1982) 1(3) Aboriginal Law Bulletin 4

• Land Claims-An Interview With Mr Justice Toohey
• The Meaning Of ‘Spiritual’?
• Dealing With Secret Matters
• Law Meets Anthropology

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Land Claims - An Interview with Mr Justice Toohey

As Aboriginal Land Commissioner, Mr Justice Toohey hears claims pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (C'th.) and makes recommendations to the Minister for Aboriginal Affairs. In the past five years, Justice Toohey has heard and reported on twelve claims. Some forty claims are still outstanding.

On the ABC's radio program The Law Report for 10 November 1981, Justice Toohey spoke with Marius Webb about his work. The Aboriginal Land Commissioner commenced by describing the way hearings are conducted:

The term `court' itself is appropriate in so far as some of the hearing takes place in the Supreme Court but that is largely a matter of convenience. I usually run the hearings on the basis that the Aboriginal claimants' evidence is taken wherever they find it convenient, which is where they happen to be living which may be in a community or it may be in a town; evidence is very often taken outside - wherever it happens to be appropriate. The hearings have taken place in the Centre on Aboriginal communities. I suppose we have travelled by just about every means except camel, since we have travelled by plane, helicopter, car, truck, boat . so it certainly makes it a colourful and from my point of view, a very fascinating job; there is no question about that. The Act does not require me to observe any particular procedures. I take the evidence as I say, where I find it and one of the most interesting developments has been the way in which the Aboriginal claimants give their evidence in groups instead of the usual system by which one person speaks at one time. I find it convenient, that is in terms of eliciting material, to hear from people in groups of two, three, four, sometimes up to ten. It has got some practical difficulties, particularly in terms of trying to record the material, but I think it is a worthwhile exercise.

You have interpreters presumably when you have people who don't have English as a first language?

Yes, although it is not very often that we have had to use interpreters for any sustained period of time. Sometimes in the Centre it has been useful to have interpreters. I have found it valuable not only in terms of what I might call `straight interpretation' (that is, people conveying Aboriginal words into English words), but also with a very skilled interpreter, I think there is a real scope for exposition of ideas that people are trying to convey. Now that may not be strictly `interpretation' but there are times when I have certainly found it useful to have explained concepts of responsibility for land ownership, land which Aboriginal people traditionally didn't think of in our terms, and for which the words themselves may not be available to make a strict interpretation. But by and large most of the hearings are carried on in English.

I suppose you would have to describe them as being fairly informal?

Yes they are. There are no rules of evidence. I can, I suppose, take whatever material I like. I find some advantages in applying the ordinary rules of evidence to some extent, if only because it helps to keep the hearing on the rails and tends to confine thematerial to what is relevant, but I suppose hearsay is the classic case which ordinary courts don't accept whereas I quite readily accept it: people speaking about what their parents have told them about land, what relations have told them, things like that. If I find that, as sometimes happens, there might be a sharp conflict over some matter of fact, perhaps where there are claimants involved and non-claimants (that is peoples whose interests may be affected by the claim), then I try as far as I can to confine the evidence to the sort of evidence that would be received in court. I think that that is simply a matter of trying to be fair rather than feeling myself bound by the rules of evidence.

The meaning of ‘spiritual’?

The Act uses the word 'spiritual'.[1] Is that something that is unique to - this particular legislation? Do other countries, for example, where they have traditional ownership, use words like that? It is an usual word for the law.

Yes it is, and it raises all sorts of questions and the obvious difficulty at times of one conveying one's spiritual belief. People do that in a variety of ways, perhaps by words, but very often by display of ritual objects, by ceremonial dancing (by men or by women), in order to get across some picture of their attachment to the land. But to answer your question, I am not aware of any legislation that is really comparable to our own, or of any legislation that uses that particular term.

Can I ask you, do you have any argument ment about the interpretation of that particular word from say, someone who might be opposing a claim?

People might seek to stress perhaps in opposition to a claim or in support of a claim the degree of spiritual attachment, if you like the extent to which it has been borne out by the hearing. It may be that in a particular case, people will be heard to say that there has not really been demonstrated any very strong spiritual attachment to land, pehaps because people have been away from the land for so long that they have largely forgotten what it meant to them or indeed they may have been away from it all their lives, so in a sense, apart from what they have been told by their parents and others, they may in fact have no particular affiliation with the land.

Do you have an adversary situation develop between one party laying claim to land and another party, for example, opposing that claim?

Yes it has arisen from time to time. I know that people at times are critical of the adversary process but it seems to me that if you have an Act that provides the means by which people can establish title to land and if that establishing of that title is likely to have implications for others, they must be given a right to be. heard. But by and large it is not so much an adversary situation as one in which people (whether they might be pastoralists or holders of leases, mining companies or the government) wish to be heard, not so much in opposition to the claim, but rather to ensure that their own interests are protected as best they -can be. But there have been a number of cases in which the claim for traditional ownership itself has been opposed.

Do you ever have a situation where you have highly skilled Q.C.s, for example, opposing people who have lived in the bush all their lives and who virtually are at the other end of the continuum in terms of their legal, or just vocal fluencies, and so on?

Well,. the claimants themselves are always represented by counsel. Certainly there have been cases when there have been quite a battery of barristers, I think probably as high as ten, but I don't think the claimants themselves suffer greatly from that. It might well be said that those who are seeking to question them might be at some disadvantage because they lack the capacity to put across their questions. But I think there is a real problem of making sure that what people wish to say comes across and is appreciated by us, and that means not merely understanding the words that are being used, but trying to get some idea of peoples’ beliefs, and as I said earlier, of their attachment to the land.

Dealing with secret matters

One of the things that interests me and I imagine would make it a fairly unusual and perhaps difficult business is the sort of evidence that is given. For example, if you have people talking about their sacred sites, they would wish presumably, to have a lot of those things kept a secret. Now in a normsi court of law, you don't have secrets in that sense?

No, you certainly don't have them in that sense. There are provisions in ordinary litigation to protect, I suppose industrial secrets as one example, or even something like a report on the welfare of a child may often need to be kept confidential. In the main it does not present much of a problem, not because people don't want to keep certain things secret - they do, but very often they are prepared to talk about them in a restricted way which, if they are men, means that men only are to bee present. Given the general composition of the people who go to make up the land claims, that generally does not present a problem when it is men who wish to keep the information to themselves, or rather confine it to those of the male gender. It does present a problem sometimes in the case of women. But people make that assessment; sometimes they will say that there is material that they wish me to see, dances that they - wish me to watch. Other times they will take the view that they would rather not make those things known, perhaps because of the presence of other people and I certainly have taken in almost every land claim material on a restrictive basis, that is, material that is only available to counsel and to those who are advising counsel.

So does that mean that it is actually available to other parties?

Yes, generally. There have been some occasions, very limited occasions, when I have been asked to listen to something on the basis that it should only be said to me and not go beyond. Now that is a matter where one has to invite the views of those who are participating in the land claim and make some decision on. But it is a very limited part of the presentation of the land claim.

It is an interesting point because I imagine it is so different from any other legal system. If you were given some evidence by one party and asked to keep it a secret, the other party might wish to use it, or make some point about it.

Well from the very nature of it, it is going to be material that relates in the main to a particular ceremony, to the people who participate and the naturee of the ceremony itself and its details. That's the sort of thing that I suppose in a general way no one is going to be able to make much of in the sense of well, there it is, it has been done; no one generally would question the fact that it has occurred or that it was a genuine ceremony. So it is more that Aboriginal people see it as a way of conveying, without words, the importance of the land, the importance of ceremony, ritual to them.

Law meets anthropology

Do you have people looking at the evidence from a perspective outside the law?

Well the claimants themselves are always supported in their case by one or more anthropologists, usually those who have done the field-work to prepare the material necessary for the presentation of the claim. I always have a consultant anthropologist whose task is to assist counsel who in turn is assisting me, and at the end of the hearing to make some sort of assessment of the evidence. Now that report is made available to all those who are participating before final addresses. If as sometimes happens, one of the parties wants to cross-examine my consultant, then I make that person available for cross-examination. Sometimes the report goes in without arty cross-examination. But it brings to bearr the whole discipline of anthropology in relation to the law which I think is one of the things that I find interesting about the land claims.

As a by-product, I suppose one is getting a lot of valuable evidence for future anthropologists as well?

Well it has proved to be an enormous mine of material; there is no doubt about that. It is not for me to say, I am not an anthropologist, but I suspect a lot of things that have been said about systems of Aboriginal land tenure in the past are going to have to be re-thought and no doubt re-written. And quite apart from the importance of the land claims themselves, they do represent a repository of an enormous amount of valuable anthropological and historical material. For that reason I have preserved the tapes of the Aboriginal evidence in all the land claims and one of the main reasons for doing that is simply that it would be a great pity if that sort of oral history were ever lost.

It is that broad, is it, a lot of things that are said to you in terms of the claims? In other words to establish their interest in a specific land area, people will talk about it in an historical way?

Well very often the history is important to demonstrate why people are where they are. Very often they are off their traditional country and that can be for a variety of reasons ranging from some of the incidents that have taken place in the Territory where people have been killed and forcibly driven from their land, too what I suppose is really the converse situation where people have been attracted by white settlement to move from their traditional country, in the presence of food, health, education. Those sorts of facilities have drawn people towards white settlement in many cases, so that some idea of history is often very important to an understanding of why people happen to be where they are at the time when the land claim is heard.

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[1] Section 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 (C'th.) defines `traditional Aboriginal owners, in relation to land' to mean: '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 spitrual responsibility for that site and for the land ...'