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Ritter, David --- "Whither the Historians? The Case for Historians in the Native Title Process" [1999] IndigLawB 1; (1999) 4(17) Indigenous Law Bulletin 4


Whither the Historians?
The Case for Historians in the Native Title Process

by David Ritter

History is the foundation of native title. The common law does not allow for native title to be asserted solely on the basis of current use, possession, custody or power. Contemporary political or legal control of land is in itself insufficient to ground native title. The High Court has unequivocally declared that native title only exists in instances where an identifiable Aboriginal community or group can demonstrate that they have a particular type of history: a continuing, unbroken traditional connection with or occupation of the land in question since the assumption of Crown sovereignty.[1] Native title claimants must be able to demonstrate this historical lineage or they will not succeed with their claim. Similarly but even more specifically, the amended Native Title Act requires that native title claimants demonstrate various historical facts before they gain the right to negotiate and other procedural benefits under the registration test.[2]

It would seem axiomatic that, as history is the foundation of native title, historians[3] should be well-represented amongst those who are busy constructing the edifice of the native title claim process. This statement is not to imply that historians are more important experts or witnesses than Aboriginal people themselves. The courts have recognised (and I believe strongly) that the most important evidence in native title proceedings comes from the hearts and minds of Aboriginal people themselves[4]. However, there is no doubt that the evidence of Aboriginal people themselves can be buttressed by the contributions of non-indigenous experts, including historians. Paradoxically though, historians are not prominent in the native title claims process. The comparative absence of historians from the native title process is particularly odd, given the vast influence of the work of Henry Reynolds in turning judicial opinion towards a recognition of native title[5] and contrasts with the position of lawyers and anthropologists.

Anthropologists in particular, have come to dominate the research process, entrenching the professional ascendancy that they established in the land claims research process under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ‘ALRA’). There appears to be an unexamined assumption held by some anthropological researchers that it is unproblematic for an anthropologist to move effortlessly across disciplinary boundaries and perform historical research functions which may be more properly within the expertise and training of a historian. In this context, rather than being recognised as an independent discipline, history, it seems, is often reduced to the mere amanuensis of anthropology[6]. This is not to deny the importance of adopting a multi-disciplinary approach to native title research. Neither is it a call to arms in some sort of perverse turf war between non-indigenous professionals over indigenous cultural heritage. Anthropologists must engage with history, just as historians must engage with anthropology. The danger though is that it appears that the specialised professional skills and experience of historians are frequently undervalued and underutilised. In the unforgiving legal process of native title, evidence will be subjected to rigorous scrutiny and the reputations, methods and assertions of expert witnesses are likely to be subject to arduous forensic review. There are therefore likely to be significant risks involved in entrusting historical research to non-historians who may have only a sketchy grasp of historical methodology and oral history techniques. It is thus essential that historians and anthropologists renegotiate a better collaborative approach to land claim research which fully reflects the professional strengths of both disciplines

Why have historians been relegated to the back rows of the native title process? Perhaps in part because of an enduring perception that historians are mere chronologers who recite the arid facts of the past in minute detail[7]. However, within the modern discipline of history there is a recognition that history is not merely a matter of recording ‘the facts’, but rather involves the mediation of plural experiences and competing interpretations. It is now generally recognised among historians that the documented ‘facts’ of history and the selection and construction of these 'facts', often lead to the exclusion of the historical experiences of many, including Aboriginal people, women and others. The construction of these ‘facts’ is conditioned by the identity of the author, the purpose of the historical document, the relationship between the author and subject of the document, and the configuration of knowledge and power in which that document was produced. Contemporary historiography is informed by post-modernism, post-colonialism and feminism and looks to those on the fringes of history just as much as to those at the centre.

It may indeed be the case that history has been marginalised in the native title context precisely because of its own success at (post)modernising. The juridical process is not obviously suited to experts who profess to be offering a single ‘interpretation’ or ‘construction’ while at the same time eschewing the possibility of positivist objectivity. Courts are clearly more at home with the comparatively objective expertise of valuers, engineers, doctors and other expert witnesses, rather than with historians who openly declare that all historical understanding is both relative and constructed, but who nevertheless maintain that the study of history is a valid means of analytical inquiry. In this respect, while anthropologists themselves will no doubt disclaim positivism, it appears likely that courts, to some extent, will still view anthropology as an objective ‘social science’.

Perhaps another reason why historians are under-utilised in the native title context is because historians themselves are not used to the judicial system. Well before the Mabo decision, anthropologists had been appearing as expert witnesses on Aboriginal cultural issues in the courts[8]. Particularly significant in this context is the model for determining land claims established in the Northern Territory under the ALRA, which entrenched anthropology and anthropologists within the legal and administrative machinery of the land rights process. The Northern Territory experience has heavily influenced and informed native title practise throughout Australia, although the two processes are markedly different[9] and many native title professionals gained their first experience in the Territory. By contrast, very few historians have been called to give evidence as witnesses[10], a fact which is borne out by Freckleton and Selby’s four-volume ‘loose-leaf’ service on expert evidence, which includes a chapter on anthropology but does not even list ‘history’ in the index[11].

The starting point for giving historians an increased role in the native title process must be an appreciation that historians possess particular and distinct tools of analysis and interpretation. This is not to deny that recent years have seen a convergence between history and other disciplines, as well as a general merging of the disciplines into ‘cultural studies’. Clearly the distinction between diachronic history and synchronic anthropology is no more. Yet the project of history retains distinct features and if recourse must be had to clumsy generalisations about history and anthropology, in order to describe the broadly observable differences in the work and preoccupations of historians and anthropologists, then so be it: Anthropologists, it appears, seem more concerned with describing human society. Historians, it appears, seem more concerned with studying change in human affairs over time. This is not to deny that historians study society or that anthropologists study change. Rather it is simply to acknowledge that historians may - and often do - ask different kinds of questions to anthropologists and will get different kinds of answers.

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A glib example illustrates the point. In one particular native title claim, the native title claimants' oral traditions describe a pitched battle between the colonial invaders and the local Aboriginal group. Anthropological inquiry might be directed primarily towards how social understandings of the battle underpin the native title claimant group’s collective social identity. This would go to the heart of legal questions as to whether there is an identifiable native title holding group which observes traditional law and custom. However, historical inquiry - synthesising documentary sources as well as indigenous and non-indigenous oral traditions - might provide a different type of account. It might for instance reveal that the battle in question can be historically located in a particular year. Historical inquiry might also reveal possible causes of the conflict, such as drought or an increase in mineral prospecting, which might in turn lead to possible historical interpretations of the conflict which could have significant native title implications. Did a group fight to protect its territory, its resources or its cultural identity? Such inquiries are a means towards understanding the past on its own terms, and are of crucial significance in determining whether a continuing connection to traditional country can be demonstrated to the courts.

Unless historians are briefed to make wide-ranging historical inquiries in support of native title claims, there is a grave risk that important documentary sources will not be utilised. While anthropologists and lawyers are capable of accessing readily-available secondary sources and specialist anthropological writings on particular native title claim areas, it is historians who must pursue further more obscure secondary material and elaborate more imaginative lines of inquiry into the primary sources. Without historians, there is also a grave risk that nobody will listen to the documentary silences. The recognition that much of the overt historical record ignores or misrepresents indigenous people’s presence, motives and actions is a touchstone of contemporary Australian historiography. Accordingly, historians have developed techniques and theories of construction and analysis to interpret these silences and, as the aphorism goes, to make them cry out. This is a function which cannot be performed by any other discipline, nor is it a function which can be performed by historians themselves if they are forced into the role of mere chronologers.

The tremendous interest in and growth of oral history as a field of specialist expertise since the 1960s should be of particular significance to the practice of native title. Oral history - that is, using interviews with people as primary historical sources, rather than documents or other inanimate historical records - is a well respected and accepted part of the discipline of history, which has produced numerous influential works in many areas of inquiry. Its techniques and validity have been comprehensively developed and debated over three decades. Yet, it appears that oral historians have been almost totally excluded from involvement in native title claims in favour of anthropologists. When historians are involved in native title research, they often appear to be relegated to the task of simply reviewing the documentary record.

There also seems to be a tendency to sideline historians in the planning and conduct of native title claims. This is again to under-utilise historians and their skills. A detailed historical framework of events compiled by an historian can be an extremely useful guide to anthropologists and lawyers when speaking to native title informants. The cross-pollination of information between historians and anthropologists will make for more comprehensive, cost-effective and efficient research, as well as allowing for the creative interplay of ideas between the disciplines. Naturally, cost-constraints will be an issue, but the value of historical research warrants the investment. It is also false to assume that there will be no need for historians (even those who are only working with documentary materials) to be introduced to the native title claimants on whose behalf they are ultimately working. Aboriginal people may often wish to meet the historian who will be intimately researching their lives and ancestors and perusing and interpreting their government files. Furthermore, it is often the case that individual Aboriginal people or families will have compiled their own collections of records, photographs and materials. If these are to be accessed, then it may be essential for personal contact to be made between historians and native title claimant groups[12].

As acknowledged in the reference to Henry Reynolds at the commencement of this article, historians have previously played an invaluable role in much of the ground-breaking native title litigation. Both Mabo and Wik were won with the assistance of revisionary historiography that undermined prevailing judicial wisdom. Yet this was not only the ‘new’ history of Aboriginal people: it was also revisionary legal history. Reynolds, for instance, in The Law of the Land and elsewhere, argued that the law was being wrongly applied on the basis of fallacious legal history. There is work to be done by historians with respect to the extinguishing (or otherwise) effect of all categories of tenure that fall between the co-existence of pastoral leases and the unequivocal extinguishment of freehold. Similarly, historical research will ground the test cases that will come in future years with respect to fiduciary duty, compensation and limited sovereignty. In this respect, at the 1998 Australian & New Zealand Law & History Society conference in Melbourne, fascinating and important legal historical papers were presented by historians including Bruce Kercher, Desmond Sweeney and Simon Cooke which may provide the substance for future litigation to challenge prevailing legal wisdoms.

One as yet largely untested area of native title law and practice in which historical research is likely to be especially significant is compensation for past loss or impairment of native title. The law in Australia gives rights to Aboriginal people to claim compensation for loss or impairment of their native title if the act of extinguishment or impairment occurred after the enactment of the Racial Discrimination Act in 1975[13]. Historical inquiry will be absolutely essential for demonstrating the existence of native title rights and interests as they were enjoyed in 1975 and thereafter, in order to then show ‘what has been lost’ to government and to the courts.

All political projects draw legitimacy from their concomitant historiography and the campaign for the recognition of native title and the wider reconciliation movement are no different. It is essential that history is enlisted in the struggle against injustice which the evolution of the common law of native title represents. If historians are not adequately involved in the native title process, or written off simply as mechanical compilers of fact, then important expert evidence may never be generated, and native title claimants stand to lose one of their best tools for succeeding in their claims. By not involving historians sufficiently or failing to recognise the full extent of their techniques of inquiry, interpretation and analysis, Aboriginal people may end up being denied one of their most powerful evidentiary, intellectual and rhetorical means of asserting their native title rights and interests. Apart from this, historical research which may be of immense cultural value to Aboriginal people may never be undertaken, the native title process itself will lose much in lustre and richness and Australian society and public discourse will be much the poorer.

On a broader scale, the historiography of Australia’s indigenous people is still evolving. The rapid evolution of the historiography of Aboriginal Australia has profoundly influenced public opinion, law and policy in Australia in recent years. There is the potential for history written in a native title context to develop new post-colonial forms and means of analysis and interpretation, which will further transform our understanding of the Australian past, and which may have a powerful impact upon contemporary Australian society. As Chief Judge Durie of the Waitangi Tribunal of New Zealand commented several years ago, a ‘recounting of the past is a potent force for initiating and determining future action’, and the exercise of that power in a native title context has ‘immediate and apparent results’.[14] However, if history is marginalised from native title proceedings, that ‘potent force’ for social change will be lost.

David Ritter is a Senior Associate at Dwyer Durack, Barristers & Solicitors in Perth and works for a number of native title claimant groups and native title representative bodies. He has an Honours degree in History.


[1]Mabo v Queensland (2) [1992] HCA 23; 107 ALR 1 remains the primary authority. See Brennan J at 42-44; Deane and Gaudron JJ at 62-68 and Toohey J at 144-148.

[2]NTA, ss190A-C.

[3]In this article, the term ‘historian’ is used to describe a person who has qualifications in history from a university and who practises as an academic or professional historian. It is not used to connote members of native title claimant groups who are bearers of their own oral traditions.

[4]See Ejai v Commonwealth, Supreme Court of Western Australia, unreported; NTS [60,000]. Aboriginal people are the primary experts on their own culture and must be respected as such.

[5]Mabo, supra, see Toohey J, n4 at 181, and Deane and Gaudron at 191.

[6] All historians working in the area of colonial, indigenous and contact history in Australia should be aware that it may be impossible for them to remain disengaged from the native title process. All work performed by historians in relation to Aboriginal people in Australia whether past, present or future is extremely likely to be used as a reference in the native title process or related legal proceedings. Only the successful mediated resolution of native title claims may prevent claims from going to full litigation which may require exhaustive recourse to all secondary historical materials.

[7] Although at a recent conference, one historian employed by the Crown appeared to be suggesting to a somewhat bemused audience of historians that her role was merely to go through records and simply recite what had happened.

[8]See the discussion in Palmer, K., "Forensic Anthropology" in Freckleton, I. and Selby, H., Expert Evidence, Law Book Company, Sydney, 1993 and the cases cited therein.

[9]See for instance Neate, G., "Proof of Native Title" in Horrigan, B. and Young, S., Commercial Implications of Native Title, Federation Press, 1997.

[10]A rare instance occurred in the early 1980s when Dr Richard Bosworth gave evidence as an expert witness in a NSW case concerning the history of fascism in Eastern Europe. The abortive Australian war crimes prosecution cases in the early 1990s were another example. See also Goodall, H., ‘The Whole Truth and Nothing But....Reflections of a field worker on the intersections of Western law, Aboriginal history and community memory’ in Attwood, B., Power, Knowledge and Aborigines: A special issue of the Journal of Australian Studies, Sydney, 1992.

[11]Freckleton and Selby, Supra.

[12]There are also authentication issues. See Peterson, N., ‘Organising the Anthropological Research for a Native Title Claim’ in The Skills of Native Title Practice, AIATSIS, Canberra, 1995. at 15.

[13]Naturally, if the common law ever reaches the point of allowing compensation for pre-1975 extinguishment or impairment, the importance of history will be further magnified.

[14]Durie, E.T., "The Lawyer and Historian in Concert", Opening Address delivered at the Australian and New Zealand Law and History Conference, Wellington, 1-3 July 1994 at 1.


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