DRAWING INFERENCES IN THE PROOF OF NATIVE TITLE ... · ABBREVIATIONS ALRC Australian Law Reform Commission ALRC Connection Report Australian Law Reform Commission Connection to Country:

DRAWING INFERENCES IN THE PROOF OF NATIVE TITLE –

HISTORIOGRAPHIC AND CULTURAL CHALLENGES AND

RECOMMENDATIONS FOR JUDICIAL GUIDANCE

SCOTT SINGLETON

N2076357

BA, LLB (Qld), LLM (Hons) (QUT), Grad Dip Mil Law (Melb) Solicitor of the Supreme Court of Queensland

Legal Practitioner of the High Court of Australia

Submitted in fulfillment for the degree of Doctor of Juridical Science

SUPERVISOR: PROFESSOR BILL DUNCAN ASSOCIATE SUPERVISOR:

ASSOCIATE PROFESSOR BILL DIXON

EXTERNAL SUPERVISOR:

PROFESSOR JONATHAN FULCHER (UQ)

Faculty of Law

Queensland University of Technology

2018

KEYWORDS

Evidence - expert witnesses - historiography - inferential reasoning - judicial guidance - law reform -

native title - oral evidence - proof of custom

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ABSTRACTOn 30 April 2015, the Australian Law Reform Commission (ALRC) delivered its report Connection to

Country: Review of the Native Title Act 1993 (Cth) (ALRC Connection Report).

The terms of reference for the inquiry leading up to the ALRC Connection Report included a request

that the ALRC consider “what, if any, changes could be made to improve the operation of

Commonwealth native title laws and legal frameworks,” including with particular regard to “connection

requirements relating to the recognition and scope of native title rights and interests.”

Amongst its recommendations, the ALRC Connection Report recommended guidance be included in

the Native Title Act 1993 (Cth) regarding when inferences may be drawn in the proof of native title,

including from contemporary evidence.

To date, this recommendation has not been taken up or progressed by the Commonwealth

Government. This thesis therefore develops such “Inference Guidelines” for the purposes of the proof

of connection requirements in native title claims, in the form of a “Bench Book.”

This thesis identifies various motivations for ensuring comprehensive, consistent and transparent

guidelines for drawing inferences from historically-based sources of evidence. It also identifies and

analyses matters for inclusion in the Inference Guidelines drawn from historiographic and

epistemological debates, cultural and linguistic challenges for Aboriginal and Torres Strait Islander

oral evidence, and inferential theory.

In addition to developing the Inference Guidelines, a finding of this thesis is that the existing case law

provides a strong foundation for clear and consistent principles for inferential reasoning in native title

cases, but the broader literature provides a useful supplement to this in some aspects. The Courts

may have regard to these further matters through judicial notice, the discretionary nature of inferential

reasoning and the background or common sense factors which influence the inferences drawn by

individual judges. This can fofm a “bright line test” or “taxonomy” for such matters, to the extent that

the Inference Guidelines provide a single reference to a comprehensive and consistent set of

principles and methods which can guide the Court’s reasoning (accompanied by a greater level of

certainty and transparency for the parties).

Finally, this thesis identifies an over-riding requirement for inferential reasoning, namely that

inferences may only be drawn where they are supported by evidence (beyond the unsystematic and

fragmentary) which can provide a foundation for those matters required to be proved in relation to

connection in a native title determination. Notwithstanding the need to alleviate the specific

evidentiary challenges faced by native title claimants, inferential reasoning cannot bypass the

elements required to be proven, without enlarging the scope of what constitutes native title at law.

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TABLE OF CONTENTSKEYWORDS..................................................................................................................................................2

ABSTRACT.................................................................................................................................................... 3

TABLE OF CONTENTS................................................................................................................................ 4

ABBREVIATIONS..........................................................................................................................................7STATEMENT OF ORIGINAL AUTHORSHIP........................................................................................... 11

ACNOWLEDGEMENTS.............................................................................................................................. 12

INTRODUCTION..........................................................................................................................................13

Background..............................................................................................................................................13

Aim and research questions....................................................................................................................16

Methodology.............................................................................................................................................17

Structure................................................................................................................................................... 18

Literature Review.....................................................................................................................................19CHAPTER 1 - PROVING NATIVE TITLE................................................................................................ 24

Overview of Chapter 1............................................................................................................................ 24

1. Preamble and Objects of the Native Title Act.................................................................................24

2. Native title proof - what this involves............................................................................................ 25

3. Types of witnesses..........................................................................................................................274. The Rules of Evidence and Procedure.......................................................................................... 32

5. Conclusion to Chapter 1..................................................................................................................37CHAPTER 2 - THE ALRC REFORM PROPOSALS AND THEIR DRIVERS........................................39

Overview of Chapter 2......................................... 39

1. Eminent persons’ calls for reform....................................................................................................39

2. Native Title Amendment (Reform) Bill 2011..................................................................................42

3. Native Title Amendment (Reform) Bills 2012 and 2014.................................................... 43

4. ALRC Connection Report terms of reference................................................................................43

5. ALRC Connection Report recommendations................................................................................45

6. Conclusion to Chapter 2..................................................................................................................50CHAPTER 3 - THE JUDICIAL-HISTORICAL ENDEAVOUR.................................................................. 51

Overview of Chapter 3............................................................................................................................ 511. International law................................................................................................................................52

2. Reconciliation.................................................................................................................................. 53

3. National identity and legitimacy......................................................................................................54

4. Knowledge preservation..................................................................................................................56

5. Public confidence............................................................................................................................ 58

6. Conclusion to Chapter 3..................................................................................................................59CHAPTER 4 - HISTORIOGRAPHIC AND EPISTEMOLOGICAL CONTROVERSIES........................60


1. The “History Wars”........................................................................................................................... 61

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2. Native Title by definition..................................................................................................................62

3. Rules of evidence and standard of proof....................................................................................... 65

4. Lack of coherence of functions and method..................................................................................67

5. Context, gaps and silences in the documentary record............................................................... 70

6. Genre and “Settler history”............................................................................................................. 73

7. Error.................................................................................................................................................. 78

8. Subjectivity, advocacy, bias and politics....................................................................................... 80

9. Multiple filters....................................................................................................................................83

10. Unease amongst the adversarial system................................................................................. 85

11. Conclusion to Chapter 4............................................................................................................ 86

CHAPTER 5 - CHALLENGES FOR CLAIMANT ORAL EVIDENCE.................................................... 88


1. Particular considerations for indigenous witnesses...................................................................... 88

2. Difference of language and non-verbal communication...............................................................90

3. Avoidance of eye contact, silences and limits on rights or abilities to speak............................. 90

4. Contrasting information exchange methods.................................................................................. 93

5. Suggestibility, gratuitous concurrence and scaffolding................................................................ 94

6. Different conceptions of time and place........................................................................................ 95

7. Speech, hearing and memory impairment.................................................................................... 96

8. Consequences of and means to accommodate cultural factors................................................. 97

9. Balancing the archive and experts with oral evidence................................................................. 99

10. Conclusion to Chapter 5............................................................................................................101CHAPTER 6 - THEORIES OF INFERENCE IN THE JUDICIAL CONTEXT...................................... 103

Overview of Chapter 6.......................................................................................................................... 103

1. The need for inference.................................................................................................................. 103

2. Deduction, induction and abduction.............................................................................................106

3. Wigmore’s narrative and chart methods...................................................................................... 107

4. Generalisation, background knowledge and “common sense”................................................. 109

5. Cross-cultural interpretive ethos................................................................................................... 112

6. Concerns with mathematical approaches................................................................................... 113

7. Explanation-based reasoning....................................................................................................... 115

8. Other approaches.......................................................................................................................... 116

9. Conclusion to Chapter 6................................................................................................................ 119CHAPTER 7 - GENERAL LAWS OF INFERENCE...............................................................................121

Overview of Chapter 7.......................................................................................................................... 121

1. Basic principles...............................................................................................................................121

2. Standard of proof for inferences................................................................................................... 123

3. Matters which fall short of inferential standards..........................................................................126

4. Prospectant evidence, retrospective evidence and proof of custom.........................................127

5. Tactical burden and adverse inferences..................................................................................... 128

6. Inference in expert evidence.........................................................................................................131

7. Statutory guidance for inference drawing.................................................................................... 134

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1368. Conclusion to Chapter 7CHAPTER 8 - INFERENCE DRAWING IN NATIVE TITLE DETERMINATIONS - SUCCESSES ANDCHALLENGES...........................................................................................................................................138

Overview of Chapter 8..........................................................................................................................138

1. Acknowledgement of challenges and need for inference........................................................... 139

2. Foundations for inferential reasoning.......................................................................................... 141

3. Gumana Principles........................................................................................................................143

4. Assessments at the relevant points in time.................................................................................1475. Genealogical evidence..................................................................................................................151

6. Geographic boundaries.................................................................................................................152

7. Expert evidence............................................................................................................................. 154

8. Inferences of failure to maintain connection................................................................................1569. Challenges for overlapping claims.............................................................................................. 159

10. Disregarding prior extinguishment........................................................................................... 160

11. Adverse inferences and tactical burden..................................................................................161

12. Conclusion to Chapter 8........................................................................................................... 163CHAPTER 9 - CONCLUSION...................................................................................................................166

1. Summary of Chapters....................................................................................................................1662. Limitations and recommendations for future research...............................................................168

3. Findings..........................................................................................................................................168APPENDIX - INFERENCE GUIDELINES...............................................................................................174

BIBLIOGRAPHY....................................................................................................................................... 214

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ABBREVIATIONSALRC Australian Law Reform Commission

ALRC Connection

Report

Australian Law Reform Commission Connection to Country: Review of the

Native Title Act 1993 (Cth) Final Report (ALRC Report 126, 2015)

Alyawarr Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern

Territory of Australia [2004] FCA 472

Anderson Anderson v Wilson [2000] FCA 394

Badimia CG (Deceased) on behalf of the Badimia People v State of Western Australia

[2015] FCA 204

Banjima Banjima People v State of Western Australia (No 2) [2013] FCA 868

Bennell Bennell v State of Western Australia [2006] FCA 1243

Bodney Bodney v Bennell [2008] FCAFC 63

Briginshaw Briginshaw v Briginshaw (1938) 60 CLR 336

CAVR Commission for Reception, Truth and Reconciliation for Timor-Leste

Daniel Daniel v State of Western Australia [2003] FCA 666

Daniels Daniels v State of Western Australia [2000] FCA 858

De Rose De Rose v South Australia [2002] FCA 1342

De Rose FC De Rose v South Australia [2005] FCAFC 110

Delgamuukw Delgamuukw v British Columbia (1993) 104 DLR (4th) 470

Delgamuukw CSC Delgamuukw v British Columbia (1997) 153 DLR (4th) 193

Dempsey Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v

State of Queensland (No 2) [2014] FCA 528

Evidence Act Evidence Act 1995 (Cth)

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Expert Witness

Code

Federal Court of Australia Expert Evidence Practice Note (GPN-EXPT), J L B

Allsop, Chief Justice, 25 October 2016

FCA Federal Court of Australia Act 1976 (Cth)

FCR Federal Court Rules 2011 (Cth)

Gale Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374

GvH GvH (1994) 181 CLR 387

Griffiths Griffiths v Northern Territory of Australia [2006] FCA 903

Gudjala Gudjala People (No 2) v Native Title Registrar [2009] FCA 1572

Gumana Gumana v Northern Territory of Australia [2005] FCA 50

Hearsay Rule Section 59 of the Evidence Act, which provides that evidence of a previous

representation made by a person is not admissible to prove the existence of

a fact that can reasonably be supposed that the person intended to assert by

the representation.

HREOC Australian Human Rights and Equal Opportunity Commission

ICTY International Criminal Tribunal for the former Yugoslavia

Inference

Guidelines

A judicial aid to provide guidance regarding when inferences may be drawn

in the proof of native title rights and interests, consistent with

recommendation 7-1 of the ALRC Connection Report, and set out in the form

of a Bench Book in the appendix to this thesis.

Jango Jango v Northern Territory [2006] FCA 318

Jones v Dunkel Jones v Dunkel (1959) 101 CLR 298

Lake Torrens Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899

Lardil Lardil Peoples v State of Queensland [2004] FCA 298

Lopes Lopes v Tay/or (1970) 44 ALJR 412

Mabo Mabo v State of Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1

Mason Mason v Tritton (1994) 34 NSWLR 572

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MUirrpum MUirrpum v Nabalco Pty Ltd (1971) 17 F.L.R. 141

Narrier Narrier v State of Western Australia [2016] FCA 1519

Native Title Act Native Title Act 1993 (Cth)

Ngarla AB (deceased) (on behalf of the Ngarla People) v State of Western Australia

(No 4) [2012] FCA 1268

NNTT National Native Title Tribunal

Neowarra Neowarra v State of Western Australia [2003] FCA 1402

Opinion Rule Section 76 of the Evidence Act, which provides that evidence of an opinion is

not admissible to prove the existence of a fact about which the opinion was

expressed.

Rich Australian Securities and Investments Commission v Rich [2005] NSWCA

152

Risk Risk v Northern Territory of Australia [2006] FCA 404

Rubibi Rubibi Community v State of Western Australia [2001] FCA 607

Rubibi No 5 Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025

Sam pi FC Sampi on behalf of the Bardi and Jawi People v State of Western Australia

[2010] FCAFC 26

Seltsam Seltsam Pty Ltd v McGuinness (2000) NSWCA 262

Soulemezis Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

UNDRIP United Nations Declaration on the Rights of Indigenous People

Van der Peet R v Van der Peet [1996] 2 SCR 507

Waanyi Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA

625

Ward Ward v State of Western Australia (1998) 159 ALR 483

Ward FC State of Western Australia v Ward [2000] FCA 191

I

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Ward HC State of Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28

Wik Wik Peoples v State of Queensland (1996) 187 CLR 1

Wongatha No 7 Harrington-Smith v State of Western Australia (No 7) [2003] FCA 893; (2003)

FCR 424

Wongatha No 9 Harrington-Smith on behalf of the Wongatha People v State of Western

Australia (No 9) [2007] FCA 31

Wyman Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013]

FCA 1229

Yarmirr Yarmirr v Northern Territory of Australia (No 2) (1998) 156 ALR 370

Yarmirr FC Commonwealth v Yarmirr [1999] FCA 1668

Yorta Yorta Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998]

FCA 1606

Yorta Yorta FC Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001]

FCA 45

Yorta Yorta HC Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002)

214 CLR 422; 194 ALR 538

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STATEMENT OF ORIGINAL AUTHORSHIP

The work contained in this thesis has not been previously submitted to meet requirements for an

award at this or any other higher education institution. To the best of my knowledge and belief, the

thesis contains no material previously published or written by another person except where due

reference is made.

Signed:

Date:

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QUT Verified Signature

ACNOWLEDGEMENTSI am extremely grateful for the advice and assistance provided by a number of people over the course

of the research for this thesis. Special thanks go to my supervisory team for their guidance throughout

the preparation of this thesis. Professor Bill Duncan and Associate Professor Bill Dixon of QUT Law

School provided tremendous support in keeping me on track to complete this work, and were a great

source of advice in relation to the applicable standards and expectations for the thesis generally and

codification of applicable principles specifically . I am especially grateful to them both for stepping in to

complete the supervision of this thesis part way through the process.

My external supervisor, Professor Jonathan Fulcher of the University of Queensland, remained a

constant source of terrific advice across the various aspects of the thesis, drawing on his expertise as

both an historian and a native title lawyer, most recently in relation to the opportunity to focus the

research on matters arising from the ALRC Connection Report.

I am extremely grateful to Professor Douglas Fisher for having been my principal supervisor for a

number of years prior to his retirement from QUT. His support and sage advice was always very

helpful. Similarly, Dr Gary lanziti, then the Director of the Humanities Research Program at QUT, was

previously an associate supervisor and provided helpful assistance with matters of historiography.

I am grateful for the assistance of Margaret Stephenson of the University of Queensland Law School,

as the external panelist for my confirmation of candidature, and Tony Denholder of Ashurst Lawyers,

as the external panelist for my final seminar.

I would also like to thank various other people who have provided helpful advice and assistance over

the course of this research. Professor Simon Young, Ann Wallin and Jose Teixeira all provided helpful

early suggestions on key sources. Registrar Chris Fewings, then of the Federal Court and now of the

National Native Title Tribunal, gave useful guidance on procedural developments for native title expert

evidence. Dr Angus Frith and Joe Sambono provided helpful suggestions in relation to Bench Books

as a source of guidance to the Court. Cathy Marr of the Waitangi Tribunal generously provided her

insights into comparative procedural issues. Andrea Olsen, with whom I co-presented a paper on

reform issues at the AIATSIS National Native Title Conference in 2017, was a great source of insights

into broader implications generally.

Special thanks to senior Karingbal elder Charles Stapleton, for informally sharing his experiences with

me, which provided a level of validation of the complexities involved in the native title judicial system.

Finally, I am indebted to my wife Catherine Singleton, and to our children Hamish, Skye and Alasdair,

for their support and sacrifices made over a long period of time, which have allowed me the

opportunity to complete this thesis.

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Introduction

BackgroundNotwithstanding the comments of Brennan J in Mabo v State of Queensland (No. 2)1 (Mabo) that the

“difficulties of proof... afford no reason for denying the existence of a proprietary community title

capable of recognition by the common law,”2 the Native Title Act 1993 (Cth) (Native Title Act) places

a very heavy burden on claimants if they are to successfully prove the existence of native title. The

need to prove, on the balance of probabilities, native title rights and interests are possessed under

laws acknowledged and customs observed is complicated by the requirement that such laws and

customs be traditional ones. These requirements further encompass the need for the claimants to

evidence connection, by those traditional laws and customs, with the land or waters the subject of the

claim.3

The Court’s interpretation of the statutory definition of native title has further complicated these

matters, as borne out by the statements of Gleeson CJ and Gummow and Hayne JJ in the High

Court’s judgment in Members of the Yorta Yorta Aboriginal Community v State of Victoria,4 (Yorta

Yorta HC) in the following two fundamental respects:

• The concept of “traditional” requires that such laws and customs “are to be found in the

normative rules of the Aboriginal and Torres Strait Islander societies that existed before the

assertion of sovereignty by the British Crown" (emphasis added).5 Further, “the

connection which the peoples concerned have with the land or waters must be shown to be a

connection by their traditional laws and customs ... understood ... [by reference] to the body

of law and customs acknowledged and observed by the ancestors of the claimants at

the time of sovereignty’ (emphasis added).6

• Possession of rights and interests in land or waters under traditional laws acknowledged and

traditional customs observed “requires that the normative system under which the rights and

interests are possessed ... has had a continuous existence and vitality since

sovereignty’ (emphasis added) and not be pursuant to “any later attempt to revive

adherence to the tenets of that former system.”7 Put another way, “acknowledgment and

observance of those laws and customs must have continued substantially uninterrupted

since sovereignty’ (emphasis added), for the laws and customs observed now to be

categorised as “traditional” and “transmitted from generation to generation of the society for

which they constituted a normative system giving rise to rights and interests in land,” rather

1 [1992] HCA 23; (1992) 175 CLR 12 Ibid at [53]3 Native Title Act 1993 (Cth) s 223(1)4 (2002) 214 CLR 422; 194 ALR 5385 Ibid, at [46]6 Ibid, at [86]7 Ibid, at [47]

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than a “body of laws and customs originating in the common acceptance by or agreement of

a new society of indigenous peoples.”8

These requirements have been applied by the Courts at various levels in subsequent native title

cases. For example, Mansfield J in Risk v Northern Territory of Australia9 (Risk) distilled these

requirements down as follows:

whether the acknowledgment and observance of the laws and customs has continued

substantially uninterrupted by each generation since sovereignty, and whether the society has

continued to exist throughout that period as a body united in and by its acknowledgment and

observance of those laws and customs.'10

Whilst native title rights and interests need not be the same as those that existed at sovereignty and

may alter and develop thereafter, they must continue to find their origin in pre-sovereignty law and

custom.11 Thus evidence of the ongoing existence of native title claims must be obtained from

sources reaching back, in some instances, approaching 230 years. Compounding matters further,

these legal hurdles apply notwithstanding the evidentiary record available to native title claimants is

often both qualitatively and quantitatively far more challenged than that which is available in most

other forms of litigation.

The consequence of this conglomeration of difficulties is two-fold. Firstly, as Bartlett states:

the task for the claimants, in an area of intensive European settlement, becomes almost

insurmountable. The end result is that native title claimants in remote areas will find proof of

native title very difficult, but in urban areas and the South they are likely to find it nigh on

impossible.12 13

These hurdles were recognised very early on in native title jurisprudence. For example, with reference

to genealogical evidence, Kirby P (as His Honour then was) in Mason v Tritton13 (Mason) was

conscious of the “many deprivations and disadvantages following European settlement of Australia

and the limited record keeping of the earliest days” which made proof by recorded details next to

impossible.14

Secondly, if the “insurmountable/nigh on impossible” nature of the demands are to be countered, and

to deliver upon the remedial nature and beneficial purpose of the Native Title Act, there is inherently a

greater calling on the Courts to draw inferences from the available evidence to determine that proof of

native title existence is made out. To do otherwise, with reference to Kirby P in Mason again, would

be “unreasonable and unrealistic.”15

8 Ibid, at [87]9 [2006] FCA 40410 Ibid, at [97(c)]11 Bodney v Bennell [20081 FCAFC 63 at [120]12 Bartlett, R. H. Native Title in Australia (3rd ed), LexisNexis Butterworths, Chatswood, 2015, at 243 - 24413 (1994) 34 NSWLR 57214 Ibid, at 58815 Ibid

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Such inferences may be drawn based on evidence including that given orally by native title claim

group members, by reference to sources from the archive, and through reports from and the

examination of expert witnesses. But these approaches bear out their own challenges, both in relation

to consistent principles for inference drawing and in relation to assessing historically-sourced

evidence generally. The former conundrum is highlighted again by Gleeson CJ, and Gummow and

Hayne JJ in the Yorta Yorta HC, in stating:

It is not possible to offer any ‘single bright line test’ for deciding what inferences may be

drawn or when they may be drawn, any more than it is possible to offer such a test for

deciding what changes or adaptations are significant'6 (emphasis added).

The latter conundrum was aptly highlighted by Gummow J in Wik Peoples v State of Queensland,''7

(Wik) in that “[t\here remains lacking, at least in Australia any established taxonomy to regulate

such uses of history in the formulation of legal norms’™ (emphasis added).

In the context of such matters, on 30 April 2015, the Australian Law Reform Commission (ALRC)

delivered its report Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report

126, 2015) (ALRC Connection Report). The ALRC Connection Report was in response to terms of

reference issued by the then Commonwealth Attorney General on 3 August 2013 for inquiry and

report under section 20(1) of the Australian Law Reform Commission Act 1996 (Cth). These terms of

reference included a request that the ALRC consider “in light of the Preamble and Objects of the

[Native Title Act] what, if any, changes could be made to improve the operation of Commonwealth

native title laws and legal frameworks” including with particular regard to “connection requirements

relating to the recognition and scope of native title rights and interests.”16 17 18 19

Amongst its recommendations, the ALRC Connection Report rejected amendments to the Native Title

Act to introduce a presumption of continuity/ reversal of the onus of proof of such matters,

recommended amendments to the definition of native title in section 223 of the Native Title Act, and

recommended guidance be included in the Native Title Act regarding when inferences may be drawn

in the proof of native title, including from contemporary evidence (Inference Guidelines).20

In G v H21 (G v H) Brennan and McHugh JJ gave the following definition of inference, which was

referred to in the ALRC Connection Report:

An inference is a tentative or final assent to the existence of a fact which the drawer of the

inference bases on the existence of some other fact or facts. The drawing of an inference is

an exercise of the ordinary powers of human reason in the light of human experience; it is not

affected directly by any rule of law.22

16 (2002) 214 CLR 422, at [82], adopting the language of Spigelman CJ noted in Seltsam Pty Ltd v McGuiness (2000) NSWLR 262 and since adopted in the New South Wales Court of Appeal in Coles Supermarkets Australia Pty Ltd v Bright [2015] NSWCA 1717 (1996) 187 CLR 118 Ibid, at 182-18319 Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) Final Report, ALRC Report 126, April 2015, at 6 to 720 Ibid, at 146, 220 to 22121 (1994) 181 CLR 38722 Ibid, at 390; ALRC, op cit, at 217

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Whilst the recommended Inference Guidelines have not, at the date of this thesis, been implemented,

representatives of the Commonwealth Attorney-General’s Department stated at the National Native

Title Conference in Townsville in June 2017 that work was ongoing in relation to the implementation

of the ALRC Connection Report.23 However a November 2017 options paper focuses only “on

improvements to claims resolution, agreement-making and dispute resolution processes, rather than

proposing significant changes to the key concepts of the law (including on connection and the content

of native title).”24

Aim and research questionsThe aim of this thesis is to develop appropriate Inference Guidelines in line with the ALRC

recommendations. These Inference Guidelines take the form of a “Bench Book.” The intention in

developing the Inference Guidelines is therefore to provide the Federal Court and Courts of appeal

therefrom, as well as other Courts who are called upon to deal with matters relevant to native title,

with a similar style of resource as the Bench Books that the State Courts in Queensland,25 New South

Wales26 and Western Australia27 have the benefit of (although in this case, the Bench Book extends to

comprehensively capturing the applicable case law, in addition to supplementary considerations).

The proposed Inference Guidelines are attached at the appendix to this thesis. As a mere guideline or

Bench Book, the Inference Guidelines can only operate prospectively. It is acknowledged that many

previously unsuccessful native title claimants (and perhaps some unsuccessful respondents) may

consider a different approach may have been open if the Courts had the benefit of guidelines for

inference during earlier trials. However, it would be a matter for far-ranging legislative amendments to

make such matters operate retrospectively, and as the Inference Guidelines are aimed at a

codification of existing practice, retrospective operation is not something contemplated by this thesis.

This thesis is an original contribution to knowledge, in that it develops these Inference Guidelines, not

just because the ALRC has determined a genuine need for them, but also given the suggested gaps

in the relevant law identified by the High Court judgments referred to previously. It is an attempt to

provide a greater foundation for a “bright-line test” in these matters, whilst also seeking to identify

elements of a “taxonomy” to regulate uses of historically sourced evidence and instill these into that

test. Such a contribution is consistent with the requirements of native title, for which Black CJ stated

23 Walter, A and Z Sanderson, “Amendments to the Native Title Act - recent changes and the process for future reforms” Australian Institute of Aboriginal and Torres Strait Islander Studies National Native Title Conference, Townsville, 7 June 201724 Commonwealth Attorney General’s Department Reforms to the Native Title Act 1993 (Cth) Options Paper, November 2017 at3 https://www.aq.qov.au/Consultations/Documents/options-paper-proposed-reforms-to-the-native-title-act-1993.PDF (accessed5 December 2017)25 Supreme Court of Queensland, Equal Treatment Benchbook (2nd ed)http://www.courts.qld.qov.au/ data/assets/pdf file/0004/94054/s-etbb.pdf (accessed 11 November 2017)26 Judicial Commission of New South Wales, Equality Before the Law Benchbook (Release 10), July 2016 https://www.iudcom.nsw.qov.au/wp-content/uploads/2016/07/Equalitv before the Law Bench Book.pdf#paqe23 (accessed11 hJovember 2017)27 Supreme Court of Western Australia, Equal Justice Bench Book,http://www.supremecourt.wa.qov.aU/equaliustice/C/chapter aboriginal people.aspx?uid=669-9495-04-2416 (accessed 11 November 2017)

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https://www.aq.qov.au/Consultations/Documents/options-paper-proposed-reforms-to-the-native-title-act-1993.PDF

http://www.courts.qld.qov.au/_data/assets/pdf_file/0004/94054/s-etbb.pdf

https://www.iudcom.nsw.qov.au/wp-content/uploads/2016/07/Equalitv_before_the_Law_Bench_Book.pdf%23paqe23

http://www.supremecourt.wa.qov.aU/equaliustice/C/chapter_aboriginal_people.aspx?uid=669-9495-04-2416

“[t]he emphasis on developing appropriate procedures reflects the understanding that this area of the

law is unique and that unique procedures are required.”28

In developing these Inference Guidelines, this thesis addresses the following research questions:

1 What issues are raised in the literature on remedial justice for indigenous people, recent

Australian historiographic and epistemological debates, and existing literature and tools used

by the Courts in relation to special considerations regarding oral evidence of Aboriginal and

Torres Strait Islander peoples, which give rise to the inference imperative in native title?

2 To what extent have the Courts already developed principles akin to informal guidelines,

through the application of consistent bases, for the drawing of inferences in relation to the

connection requirements for a native title determination, and to what extent do these provide

a bright line test or established taxonomy for such matters?

3 How can balance be achieved in Inference Guidelines to ensure the remedial objects of the

Native Title Act are achieved and the mischiefs identified by the Courts and elsewhere are

accounted for, without impermissibly enlarging the scope of what constitutes native title?

In light of the answers determined in relation to these questions, the Inference Guidelines developed

as the outcome of this research should facilitate a more comprehensive, consistent and transparent

approach to proof of native title.

MethodologyThis thesis involves applied research, in that it is concerned with accessing existing accumulated

theories and knowledge across the fields of law, historiography and epistemology. These

accumulated theories are then directed towards a solution, being the alleviation of the duel

deficiencies in native title claims identified previously, namely a lack of a “bright line test” for inference

drawing and an “established taxonomy” to regulate uses of historically-sourced evidence. From there,

the ultimate outcome of this thesis is a workable set of Inference Guidelines.

To answer the research questions referred to above, and ultimately develop Inference Guidelines, the

research methods adopted for this thesis require a study of the proof of native title, particularly

through the drawing of inferences from archival, expert and claimant oral evidence, having regard to

historiographic, anthropological and other epistemic principles and controversies, and cultural and

linguistic considerations.

To properly accomplish this objective, it is necessary to identify common themes emerging in each of

the fields of consideration, and in each successive chapter build upon the previously identified themes

where relevant. Issues arising from these themes are then applied holistically as the foundations for

the Inference Guidelines. The themes are identified from:

28 Black, M. “Developments in Practice and Procedure in Native Title Cases,” (March 2002) 13 Public Law Review '\6 at 17, with reference to Delgamuukw v British Columbia 153 DLR (4th) (1993) per Lamer CJ: “aboriginal rights are truly sui generis and demand a unique approach to the treatment of evidence which accords due weight to the perspective of aboriginal peoples.”

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• The considerations set out by the ALRC in support of the need for Inference Guidelines in

native title claims; as well as those the subject of other calls for and attempts at reforms with

similar objectives.

• Relevant considerations arising from literature on remedial justice for indigenous peoples;

recent Australian historiographic debates on the use and reception of evidence in native title,

including from participants in the so-called “History Wars”29 and other anthropological,

historical, legal and Indigenous commentators on such matters; and specific cultural and

linguistic factors that have been identified as relevant to the assessment of the credibility and

demeanour of indigenous witnesses.

• General principles from the law of evidence, as well as legal theories relating to inference

drawing.

• Principles adopted by Australian Courts that have successfully facilitated inferential

approaches to the assessment of connection evidence, in the face of statutory, case law,

archival and cultural challenges in native title claims.

The research involved in this thesis is subject to a number of limitations. It does not, in any detailed

manner, delve into the processes of inferential reasoning adopted by experts themselves, or embark

on the theoretical aspects of historiography and epistemologies adopted by such experts. To the

extent issues in relation to expert evidence is analysed, it does so on the basis of the relevant

literature and does not involve, for example, interviews with persons who have acted as expert

witnesses in native title hearings. Similarly, the research is reliant on the literature in relation to

cultural and linguistic issues for claimant oral evidence, and does not extend to interviews with actual

claimant witnesses. These are areas that would be appropriate for future research.

StructureChapter 1 of this thesis provides an overview of the Native Title Act preamble and objects, the key

evidentiary requirements applicable to native title claims by virtue of the statutory definition of native

title, what a determination of native title must include and the application of the rules of evidence. It

also considers sources of expert (primarily anthropological and historical) evidence and claim group

member oral evidence and what these may be used to prove, as well as the relevant statutory and

case law bases for the admission of such evidence.

Chapter 2 then sets out previous calls for and attempts at reform relevant to the requirements for

proof of native title, and summarises the key reforms proposed by the ALRC in relation to proof of

native title and Inference Guidelines.

Chapters 3, 4 and 5 address the drivers behind the inference imperative in native title claims, by

analysing the broader remedial justice motivations to improve the “judicial-historical endeavour;”

29 For a useful summary of what was involved in the “History Wars," see Attwood, B and S.G. Foster “Introduction,” in Attwood, B and S.G. Foster, Frontier Conflict - The Australian Experience, National Museum of Australia, Canberra, 2003, pages 1 -30; and Curthoys, A. and J. Docker, Is history fiction? UNSW Press, Sydney, 2006, at 220 - 237

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recent Australian historiographic and associated epistemic controversies; and cultural and linguistic

issues specific to the oral evidence of Aboriginal and Torres Strait Islander Peoples respectively.

Chapter 6 analyses the general theories of inference in the judicial context. Chapter 7 then assesses

the extent to which inferential reasoning is underpinned by the common law and statute law generally.

Chapter 8 considers the role of and principles for inference drawing in native title determinations to

date, including factors that have supported inferences in favour of connection by the native title claim

group, and factors that have challenged the ability to draw favourable inferences.

Chapter 9 draws together the common and specific issues and themes identified and analysed in the

previous chapters, and answers each of the research questions based upon these. The suggested

Inference Guidelines are appended thereafter, based on the various issues considered holistically.

Literature ReviewThe review of the literature confirms that no attempts have previously been made to codify issues and

criteria as guidelines for the drawing of inferences in native title determinations (or indeed, for general

litigation). This was also the conclusion arrived at by Epstein and King,30 who stated that “the

complete list of all law review articles devoted to improving, understanding, explicating, or adapting

the rules of inference is as follows: none.”31 Those authors describe themselves as providing the “first

cut” at such matters.32 However whilst that article provides some useful material which is referred to in

Chapter 6, it is largely directed at inferential reasoning in academic legal research and is of limited

utility in relation to judicial determinations.

This thesis has benefited from the extensive volume of literature that underpins the Australian

historiographic and epistemological debates of the late 1990s and early 2000s. The most useful

example of this is Curthoys, Genovese and Reilly.33 This book includes extensive discussion in

relation to the challenges that native title claimants face, including those arising from the definition of

native title itself, the incomplete nature of the archive, “settler history” complexities, and distinctions

between the epistemological approaches between social scientists and the Courts. Those authors

also provide a useful discussion in relation to their views on the divergent nature of inferential

approaches taken by the Courts in various native title determinations.

Other works by Reilly34 and by Reilly and Genovese35 provide useful sources of material in relation to

the effects of the historical record and the need to have regard to context and genre. This includes

with regard to the approach of Black CJ in Members of the Yorta Yorta Aboriginal Community v State

30 Epstein, L. and G. King “The Rules of Inference” (2002) 69 U. Chi. L Rev. 131 Ibid, at 932 Ibid, at 1333 Curthoys, A., A. Genovese and A. Reilly, Rights and Redemption - History, Law and Indigenous People, University of New South Wales Press, Sydney, 200834 Reilly, A. “The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title” (2000) 28 Federal Law Review 453; Reilly, A. “How Mabo Helps Us Forget” (2006) 6 Macquarie Law Journal 2535 Reilly, A. and A. Genovese “Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence” (2004) 3 Indigenous L.J. 19

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of Victoria36 (Yorta Yorta FC) and Lee J in Ward v State of Western Australia37 38 (Ward), in contrast to

Olney J in Members of the Yorta Yorta Aboriginal Community v State of Victoria36 (Yorta Yorta), the

majority in Yorta Yorta FC, and of the High Court in Yorta Yorta HC, as well as the need for the

effects of a negative determination to be considered when applying the balance of probabilities

standard.

Various other authors have made substantial contributions to this aspect of the matters the subject of

this thesis. A number of books usefully each bring together the work of various authors on the topic.

The first of these is edited by Attwood,39 which was published very early in the course of judicial

acknowledgement of native title in Australia. The contributions to this work are from various prominent

historians (including Henry Reynolds) and include discussions around perceived elevated standards

of proof in the Courtroom over those exercised by social scientists, settler history, preconceptions

regarding the traditional nature of indigenous people depending on their location, and the role of

particular historians in influencing the thinking of the Court in early native title determinations.

The second of these is edited by Paul and Gray.40 This book includes contributions by various

lawyers, historians and anthropologists who have participated in the native title process, and

particularly focuses on the disparities and ethnocentrism of the archive, the greater need for

contextual analysis of historical material in native title determinations in settled areas, and a broad

ranging critique of the approaches to evidence taken in the various Yorta Yorta decisions.

McCalman and McGrath41 edited the third of these works. Again, this book includes contributions from

various lawyers and historians who have participated in native title and land claims processes. These

authors provide helpful insights into the respective roles of the expert witness and the Court in

reaching conclusions of fact, various considerations regarding bias and advocacy amongst experts,

unease of experts in the adversarial system, and various aspects of the challenges faced by native

title claimants in the witness box.

The fourth of these works is edited by Choo and Hollbach,42 and includes contributions from

historians, lawyers and traditional owners. This text includes an analysis of possible broader ways for

experts to assist the Court, the lack of acknowledgement of power relations in the archive and the

need for such sources to be read “against the grain,” a suggestion that experts called by the State

were often guided by mainstream, rather than Aboriginal, views of history, and an analysis of the

divergent approaches taken by Olney J in Yorta Yorta, to that of Lee J in Ward, and Black CJ in the

minority in Yorta Yorta FC.

36 [2001] FCA 4537 (1998) 159 ALR 48338 [1998] FCA 160639 Attwood, B. (ed) In the Age of Mabo - History, Aborigines and Australia, Allen & Unwin, St Leonards, 199640 Paul, M. and G. Gray (eds), Through a Smoky Mirror- History and Native Title, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 200241 McCalman, I. and A. McGrath (eds), Proof and Truth - The Humanist as Expert, Australian Academy of Humanities, Canberra, 200342 Choo, C. and S Hollbach (eds), History & Native Title, University of Western Australia Centre for Western Australian History, 2003

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Fifthly, Toussaint43 edited a work that includes contributions from historians, anthropologists and

lawyers (including current and future judges). This book similarly addresses evidentiary issues such

as gaps in the archive and the need for such matters to be considered in context, and the potential

emergence of the “professional witness” and associated issues of advocacy and bias. This work also

makes an important contribution to various issues relevant to claimant oral evidence, including

differing conceptions of time and space, and how expert and archival evidence may either corroborate

and augment claimant oral evidence, or contradict it.

Finally, Attwood, Chakrabarty and Lomnitz44 edited a work that includes significant contributions

particularly in relation to the role of remedial justice for indigenous people in national reconciliation,

the role of the principle of contra proferentem in the interpretation of indigenous treaties, successful

examples of variations to the adversarial system where indigenous people are called as witnesses,

and how oral evidence affords the Court with multiple perspectives.

In addition to these works, Carter45 provides a very useful analysis of the role of historians in assisting

the Court in inferential reasoning, and has conducted a similar assessment of the literature that

underpins the relevant historiographic debates, ultimately concluding that “while some of it touches

upon epistemological questions, it does not offer a rigorous analysis in terms of the proof of native

title.”46 Ginzberg47 provides a useful analysis of the benefits historians may bring to the Courts

generally in interpreting texts with regard to context. Palmer’s48 two works give useful insights into the

methodologies and processes of anthropology and how this can be challenged in the trial system,

particularly in relation to objectivity and interpretative techniques. Crispin49 provides a useful analysis

of the issues that may impact on the accuracy and objectivity of expert witnesses generally, as well as

how subjectivities may also impact on the arbiter of fact.

Various publications were relevant to the analysis of the reconciliation, national identity and

legitimacy, knowledge preservation and public confidence drivers of the need to improve the judicial-

historical endeavour. Osiel50 is perhaps the most prominent of these, including with specific reference

to native title claims in Australia. Barkan51 also makes a significant contribution in this area,

particularly in relation to national identity and legitimacy.

Surprisingly for an area which is widely acknowledged within the law, the cultural and linguistic issues

in relation to claimant evidence are not the subject of a significant volume of material beyond this

43 Toussaint, S. (ed) Crossing Boundaries: Cultural, Legal, Historical and Practice Issues in Native Title, Melbourne University Press, Carlton, 200344 Attwood, B., D. Chakrabarty and C. Lomnitz Public Culture, “The Public Life of History” volume 20 no. 1, Duke University Press, New York, 200845 Carter, A. “The Definition and Discovery of Facts in Native Title: The Historian’s Contribution” [2008] FedLawRw 13 http://www.austlii.edu.au/au/iournals/FedLawRw/2008/13.html (accessed 25 November 2017)46 Ibid47 Ginzberg, C. "Checking the Evidence: The Judge and the Historian" (Autumn 1991) 18(1) Critical Inquiry 7948 Palmer, K. “Anthropology and Applications for the Recognition of Native Title” (2007) 3(7) Land Rights, Laws: Issues of Native Title', Palmer, K. “Anthropologist as Expert in Native Title Cases in Australia” [2011 ] Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit49 Crispin, K.J. “Of Auguries and Experts” International Institute of Forensic Studies Experts and Lawyers: Surviving in the Brave New World Conference, Broome, Western Australia, 16-19 October 200550 Osiel, M. Mass Atrocity, Collective Memory and the Law, Transaction Publishers, New Brunswick, 200051 Barkan, E. The Guilt of Nations - Restitution and Negotiating Historical Injustices, John Hopkins University Press, Baltimore, 2000

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topic’s discussion in the historiographic literature. The most useful sources are the various Bench

Books, particularly from Queensland52 and New South Wales,53 and the Criminal Justice

Commission’s 1996 report.54 The most prominent author in the area is Eades,55 whose work was

drawn upon heavily in the preparation of these Bench Books. These sources all provide consistent

and comprehensive information in relation to the considerations judges should take into account when

considering the credit of indigenous witnesses. However, they do not extrapolate on this in relation to

inferential reasoning, and these sources are not focused on the area of native title specifically.

Connolly56 provides very useful insights into some further considerations in this area, including in

particular how the Court can adopt a greater cross-cultural interpretive ethos when assessing

evidence. This involves both the judicial adoption of a culturally sympathetic mindset and approaches

to leading evidence that are conducive to indigenous cultural sensitivities. Connolly applies these

recommendations both to inferential reasoning and the native title process.

Notwithstanding the limited availability of sources in relation to theories of inferential reasoning by the

Courts suggested by Epstein and King, a number of works proved useful in relation to judicial

proceedings generally. Ligertwood and Edmond57 provide a succinct summation of Wigmorian

approaches to inferential reasoning, as well as the need for vigilance for unavailable relevant

evidence and matters which may unduly influence the decision maker in the inferential process.

Similarly, Anderson, Schum and Twining58 flesh out the central concepts of the Wigmorian approach

to inferential reasoning. Those authors also usefully delineate between inference and proof,

distinguish the inferential processes in legal proceedings from other fields of endeavour, and provide

an important tool for testing the validity of generalisations in the inferential process.

Works by Pardo,59 and by Pardo and Allen,60 usefully identify factors that drive inferential reasoning

and relevant cautions for the inferential process in relation to missing evidence, as well as provide the

most comprehensive assessment of explanation-based reasoning amongst the literature. Stein,61

whilst making a self-confessed non-orthodox approach which is critiqued as such by other

contributors, also analyses the importance of consideration of missing evidence and the complexities

posed by reliance on generalisations in the inferential reasoning process. That author in particular

makes an important contribution with regard to considerations of efficiency and equality of

apportionment of risk of error when drawing inferences.

Three particular sources were of assistance in relation to proof and procedure in native title

determinations. Black CJ62 provides a useful early acknowledgement of the challenges faced by native

52 Supreme Court of Queensland, op cit53 Judicial Commission of New South Wales, op cit54 Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts, Goprint, Brisbane, June 199655 Eades, D. “Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications” (2008) 20(2) Current Issues in Criminal Justice 209 http://www.austlii.edu.au/au/iournals/CICrimJust/2008/26.html (accessed on 13 November 2017)56 Connolly, A.J. Cultural Difference on Trial - The Nature and Limits of Judicial Understanding, Routledge, New York, 201657 Ligertwood, A and G. Edmond, Australian Evidence Law (5th edition), LexisNexis Butterworths, Chatswood, 201058 Anderson, T., D. Schum, and W. Twining, Analysis of Evidence (2nd ed) Cambridge University Press, Cambridge, 200559 Pardo, M.S. “The Political Morality of Evidence Law” (2007) 5(2) International Commentary on Evidence 360 Pardo, M.S. and R. J. Allen “Juridical Proof and the Best Explanation,” (May 2008) 27(3) Law and Philosophy 22361 Stein, A. Foundations of Evidence Law, Oxford University Press, Oxford, 200562 Black, op cit

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title claimants and the complexities applicable to their evidence, and addresses the opportunities

afforded to the native title processes by the alternative approaches to procedure and evidence under

the various applicable statutes and rules. Neate in Horrigan and Young63 provides a comprehensive

overview of the role of the various witnesses in native title trials, the matters they may attest to and

the elements of native title these are directed at proving. Duff64 provides a comprehensive analysis of

the proof requirements in native title, including areas where inferential reasoning is brought to bear,

and some policy drivers for greater clarity of inferential reasoning, particularly where this can more

greatly facilitate consent determinations.

In relation to general legal texts, both Bartlett65 and Heydon66 were invaluable to an understanding of

native title and evidence respectively. Whilst Bartlett is the seminal text on developments in native title

legislation and case law, that author also ventures into areas that critique the direction in which

evidential requirements in native title is moving. He also provides an analysis of the difficulties posed

by the definition of native title in the Native Title Act, and its application in the context of requirements

of proof, which was particularly helpful context for some of the assumptions and opinions developed

in this thesis.

Strelein67 also provides an important source of such information, particularly as it relates to more

recent cases and how these do or don’t diverge from the oft-criticised approach in the various Yorta

Yorta decisions, and the potential diminution of the value of inference principles adopted in native title

cases because of further onerous requirements applicable to maintenance of connection prescribed in

other case law.

63 Neate, G. “Proof of Native Title,” in Horrigan, B. and S. Young (eds), Commercial Implications of Native Title, Federation Press, Sydney, 199764 Duff, N. “What’s needed to prove native title? Finding flexibility within the law on connection" (June 2014) 35 Australian Institute of Aboriginal and Torres Strait Islander Studies Research Discussion Paper65 Bartlett, op cit66 Heydon. J.D. Cross on Evidence (11th Australian ed’n), LexisNexis Butterworths, Chatsworth, 201567 Strelein, L. Compromised Jurisprudence - Native title cases since Mabo (2nd ed), Aboriginal Studies Press, Canberra, 2009

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Chapter 1 - Proving native title

Overview of Chapter 1The purpose of this Chapter is to provide the context of the native title claims process with regard to

the key features of the Native Title Act and how the evidentiary processes operate under it. Part 1 of

this Chapter sets out the key aspects of the Preamble and Objects provisions of the Native Title Act

which are relevant to a beneficial interpretation of the operative provisions of the Native Title Act. Part

2 considers those aspects of the definition of native title which are central to the content and proof of

native title, and the matters which a native title determination must address.

Part 3 addresses the types of witnesses called and other sources of evidence in native title claim

hearings and what their evidence is generally directed at proving. Part 4 sets out an overview of the

rules of evidence and procedure that are relevant to native title trials.

1. Preamble and Objects of the Native Title ActThe Preamble to the Native Title Act states (inter alia) that Aboriginal peoples and Torres Strait

Islanders:

have been progressively dispossessed of their lands, This dispossession occurred largely

without compensation, and successive governments have failed to reach a lasting and

equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use

of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group,

the most disadvantaged in Australian society.

The people of Australia intend:

(a) to rectify the consequences of past injustices by the special measures contained in

this Act, ...for securing the adequate advancement and protection of Aboriginal

peoples and Torres Strait Islanders; and

(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full

recognition and status within the Australian nation to which history, their prior rights

and interests, and their rich and diverse culture, fully entitle them to aspire.

It is particularly important to ensure that native title holders are now able to enjoy fully their

rights and interests. Their rights and interests under the common law of Australia need to be

significantly supplemented.

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A special procedure needs to be available for the just and proper ascertainment of native title

rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in

a manner that has due regard to their unique character.

The Objects of the Native Title Act are set out in s 3. Objects relevant to this thesis are to provide for

the recognition and protection of native title, and to establish a mechanism for determining claims to

native title.

The Preamble and Objects clause of the Native Title Act indicate that the Act has both a remedial

character and beneficial purpose.68 This has been supported by the Courts on a number of

occasions.69 And yet as further discussed particularly in Chapter 4, the challenges faced by claimants

in the proof of native title has been observed to have frustrated this beneficial purpose.70

2. Native title proof - what this involvesThe starting point for what must be proven to be successful in a native title determination application

is the definition of native title, set out in s 223 of the Native Title Act. This section (relevantly) provides

as follows:

(1) The expression native title or native title rights and interests means the communal,

group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in

relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and

the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders;

and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a

connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

A successful native title claim requires each element to be separately satisfied.71 This statutory

definition follows the language adopted by the High Court in Mabo, in particular that of Brennan J,72

who stated:

The term "native title" conveniently describes the interests and rights of indigenous

inhabitants in land, whether communal, group or individual, possessed under the traditional

laws acknowledged by and the traditional customs observed by the indigenous inhabitants. ...

Native title has its origin in and is given its content by the traditional laws acknowledged by

68 Bartlett, op cit, at 155 -15669 Lockhart J in Pareroultja v T/c/wer (1993) 42 FCR 32 at 44; 117 ALR 206 at 218; Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 per Lockhart, Lee and Sackville JJ70 Bartlett, op cit, at 156, with reference to Chief Justice R French, “Rolling a Rock Uphill? - Native Title and the Myth of Sisyphus,” speech delivered to the Judicial Conference of Australia National Colloquium, 10 October 200871 Bodney v Bennell (2008) 167 FCR 8472 Bartlett, op cit, at 148

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and the traditional customs observed by the indigenous inhabitants of a territory. The nature

and incidents of native title must be ascertained as a matter of fact by reference to those laws

and customs.73

The concepts of “traditional laws and customs” and “connection” are not defined in the Native Title

Act.

As discussed in the Introduction and in Chapters 4 and 8, the implications of the definition of native

title for proof of native title claims have been the subject of significant judicial interpretation, which in

many respects has increased the difficulties involved in proving native title. The Commonwealth

Attorney-General’s Department has summarised this in that “it must be established that the

acknowledgment and observance of traditional laws and customs by a particular society has

continued substantially uninterrupted since the time of the acquisition of sovereignty by the Crown.”74

The concept of continuity is complicated by the need for the Courts to consider what McRae and

Nettheim et al describe as “[t]he degree of legally tolerable interruption to the observance of law and

custom and to societal continuity, and ... [of] adaptation and change to the content of law and

custom.”75

The challenges posed by such tests are central to the historiographic and other controversies

discussed further in Chapter 4. Bartlett argues that onerous burdens and distortions by technical

requirements of proof that are inconsistent with a principle of respect for existing rights has resulted

from “a refusal to recognise that a society, if it exists, must necessarily have maintained such laws

and customs, requirements of continued acknowledgement and observance, and the rejection of any

presumption of continuance.”76

What a determination of native title must cover is dealt with in s 225 of the Native Title Act. This

includes the identity of the persons who hold the native title; the nature and extent of the native title

rights and interests, as well as other interests in the determination area and how these relate to each

other; and where relevant, whether the native title rights and interests confer possession, occupation,

use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Such matters must be proven to the civil standard, namely on the balance of probabilities.77 This

standard was described in the native title context by Mortimer J in Narrier v State of Western

Australia78 (Narrier), who noted the distinction:

73 (1992) 175 CLR 1 at 57 and 58, cited by Olney J in Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 at [3]74 Commonwealth Attorney General’s Department, Review of the Native Title Act 1993 by the Australian Law Reform Commission Scope of Review, at 3,https://www.aq.qov.au/Consultations/Documents/AustralianLawReformCommissionnativetitleinauirv/Review%20of%20the%20Native%20Title%20Act%201993%20bv%20the%20Australian%20Law%20Reform%20Commission%20-%20scope%20of%20review.PDF (accessed on 6 August 2017)75 McRae, H. and G. Nettheim et al, Indigenous Legal Issues (4th ed), Thomson Reuters, Pyrmont, 2009, at 34876 Bartlett, op cit, at 14777 Evidence Act 1995 (Cth) s 140(1); Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 196 and 198; Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 at [17]; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 [340]; CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [116]78 [2016] FCA 1519

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between a court deciding, in an exercise of judicial power, that on the balance of probabilities

certain events in the past did or did not occur, or certain circumstances did or did not exist,

and a decision attended by some more absolute form of certainty which purports to declare

absolutely that history ran its course in a particular way.79

The applicants bear “both an evidential onus of proof, and the ultimate onus, or burden, of proof” of

the matters referred to in the Introduction, as well as “the ambit or content of the native title rights and

interests.”80 This onus also ultimately extends to a lack of extinguishment of native title, in that “while

a party asserting extinguishment on any basis carries a burden of adducing evidence sufficient to

raise the issue for determination, the claimants will carry the ultimate or legal burden of establishing

that their title has not been extinguished.”81 Put another way, “a respondent bears an evidentiary

burden of proving the existence of its title and of the rights exercisable under it, while the burden of

proving that those rights are not inconsistent with the claimed native title rights and interests, rests on

the applicants.”82

3. Types of witnessesIn Milirrpum v Nabalco Pty Ltd83 (Milirrpum), Blackburn J identified that in matters relating to

traditional Aboriginal ownership, there are essentially “two kinds of witnesses, namely aboriginals ...

and expert witnesses.”84 Subject to Neate’s appropriate correction of this subtle distinction, that “it

would be strange to think of senior Aboriginal men and women as “inexpert” in their customary law

while accepting as “expert” opinion evidence the views of non-Aboriginal observers,”85 this continues

to be a reasonable summation of the key types of witnesses that appear in native title proceedings.

As considered further in Chapters 4 and 5, the primacy of claimant oral evidence in native title claims

is the subject of significant debate and discussion. Callinan J held in Yorta Yorta HC that if “orally

transmitted accounts” have “’’potential richness and strength” then those qualities will no doubt serve

to meet, and if appropriate, refute contemporaneous written records to the contrary.”86 Thus the

evidence of claim group members in relation to their traditional laws and customs has been held in

numerous native title determinations to be “of the highest importance. All else is second order

evidence.”87 However, there are important qualifications to this, such as the finding by Sundberg J in

70 Ibid, at [5]80 Mabo v State of Queensland [1992] 1 Qd R 78 at 86; Mason v Tritton (1994) 34 NSWLR 572 at 582 - 584 and 590 per Kirby P and at 600 per Priestly JA; State of Western Australia v Ward [2000] FCA 191 at [114] - [118]; per Beaumont & Von Doussa JJ; Daniel v State of Western Australia [2003] FCA 666 at [146] - [148]; CG (Deceased) on behalf of the Badima People v State of Western Australia [2015] FCA 204 at [489]81 Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 at [159] per Branson and Katz JJ82 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [339], with reference to Daniel v State of Western Australia [2003] FCA 666 at [148]83 (1971) 17 FLR 14184 Ibid, at 15385 Neate in Horrigan and Young, op cit, at 28286 [292] HCA 58 at [190]87 Yarmirr v Northern Territory of Australia (No. 2) (1998) 82 FCR 533 at [560]; De Rose v State of South Australia [2002] FCA 1342 at [318] and [351]; De Rose v State of South Australia [2003] FCAFC 286 at [264] - [265]; Sampi v State of Western Australia [2005] FCA 777 at [48]; Jango v Northern Territory [2006] FCA 318 at [287] - [288]; Sampi v State of Western Australia [2010] FCAFC 26 at [57]; Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No. 2) [2010] FCA 643 at [100]; Bularnu Waluwarra & Wangkayujuru People v State of Queensland (No. 3) [2014] FCA 528 at [149]; Narrier v State of Western Australia [2016] FCA 1519 at [318], Note also Lamer CJ’s judgment in Delgamuukw v British Columbia, (1997) 153 DLR (4th) 193 at [98] where His Honour held the approach taken by the trial judge,

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Neowarra v State of Western Australia88 (Neowarra), where His Honour held that where claimant oral

evidence does not cover all of the matters the subject of expert evidence, this may deprive the

claimant evidence of weight.89

More recently, Mortimer J in Narrier noted that “[n]o category of evidence starts with any

presumptions of reliability, accuracy or superiority.”90 Her Honour also added that whilst the Court’s

approach must be flexible to be able to draw inferences from the oral evidence of claimant witnesses,

this is qualified by “the limits articulated by the Canadian Supreme Court in Mitchell, and being astute

to ensure there is sufficient evidence for the discharge of the legal burden of proof.”91 In the Canadian

Supreme Court case referred to by Her Honour, Mitchell v Minister for National Revenue,92 McLachlin

CJ held “[tjhere is a boundary that must not be crossed between a sensitive application and a

complete abandonment of the rules of evidence,” and that the appropriate:

approach does not operate to amplify the cogency of evidence adduced in support of an

aboriginal claim. Claims must still be established on the basis of persuasive evidence

demonstrating their validity on the balance of probabilities. Placing “due weight’’ on the

aboriginal perspective, or ensuring its supporting evidence an “equal footing” with more

familiar forms of evidence, means precisely what these phrases suggest: equal and due

treatment. While the evidence presented by aboriginal claimants should not be

undervalued ... neither should it be artificially strained to carry more weight than it can

reasonably support.93

Claimant oral evidence constitutes what Attwood calls “a conjunction between history and memory.”94

Oral history evidence is imperative given it is the only evidence available from the pre-contact

societies to indicate what constitutes traditional law and custom. Oral or traditional evidence is

therefore given in native title claims as proof of title to family land which vests through rights existing

beyond living memory,95 and may include evidence of history, moral obligation, legend and

mythology, religion, an organised society, personal assertion of descent, cultural artefacts and an

explanation of their significance, customs, territory, traditions of family ownership and its acquisition,

succession and divestiture, and boundaries to family lands.96

In State of Western Australia v Willis on behalf of the Pilki People97 the Full Federal Court

summarised that claimant witnesses may give evidence of what the “laws and customs of the group’s

in giving no independent weight to oral histories on the basis of their perceived inaccuracies and insufficient detail, would if let stand “have the effect that the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system. ”88 [2003] FCA 140289 Ibid, at [41]90 [2016] FCA 1519 at [404]91 Ibid, at [323]92 [2001] 1 SCR 91193 Ibid, at [39]04 Attwood, B. '"Learning about the truth' The stolen generations narrative,” in Attwood, B and F Magowan (eds), Telling Stories - Indigenous history and memory in Australia and New Zealand, Bridget Williams Books, Wellington, 2001, at 19795 Ibid, at 27596 Keon-Cohen, B.A. "Some Problems of Proof: The Admissibility of Traditional Evidence,” in Stephenson, M.A. and S. Ratnapala (eds), Mabo: A Judicial Revolution - The Aboriginal Land Rights Decision and Its Impact on Australian Law, University of Queensland Press, St Lucia, 1993, at 19397 [2015] FCAFC 186

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predecessors were, usually by inference, at the time of sovereignty,” and how such laws and customs

“constitute the “normative rules” ... which define the “society” which is governed by them.”98 * 100 Such

evidence:

goes to activities that have been or are carried out by members of the claimant group -

usually within the claim area (but not necessarily so) - which helps them to prove, often by

inference, the laws and customs of the claimants and their predecessors. ... Evidence of

social relationships, kinship rules, funereal practice, exercise of authority by elders and a

range of other rules within a claimant group may [also] be the subject of oral evidence."

“Expert” evidence is generally given by anthropologists, historians, archaeologists, genealogists,

linguists, and persons qualified in a combination of these and other disciplines. Anthropologists are

the most commonly called upon experts in native title claims. Merkel J held in In Rubibi Community v

State of Western Australia (No 5)m (Rubibi No 5), that such evidence "must be weighed in the

context of the totality of the historical and ethnographic records, as well as the oral history provided by

the local community.”101 Similarly, in Bennell v State of Western Australia™2 (Bennell), Wilcox J held

that greater weight will be given to contested expert evidence, where the historical, anthropological,

and Aboriginal oral evidence coalesce.103 Importantly for the purposes of this thesis, Mortimer J in

Narrier held that “[inferential reasoning may operate on anthropological and ethnographic evidence

and opinion, just as it may on the evidence of claimant witnesses.”104 The areas of assistance

anthropological experts give includes:

• The provision of an overview of the society and opinion on the existence or otherwise of laws

and customs governing behaviour, including genealogies of groups of Aboriginal people from

earlier researchers or archival records, the nature and identities of groups, sub-groups or

communities of Aboriginal people, and how the name of a group came to be established.

• The extent of a group’s traditional country, the location of significant sites, the use and

significance of land by and for Aboriginal people, the significance of ceremony and ritual to a

group’s traditional links to particular areas, and the period of occupation of an area with

reference to carbon dating and archaeological information.

• Whether laws and customs relied upon are traditional, namely a normative system which has

continued uninterrupted since sovereignty, the rights and duties of people to land

acknowledged under traditional law and custom, the right of a claim member to take bush

resources within and beyond the clan’s estate, the extent to which traditional knowledge,

laws, customs and practice continue, and the likely consequences for a group if certain types

of traditional information is disclosed beyond the group.

98 Ibid, at [166]"Ibid, at 168100 [2005] FCA 1025101 Ibid, at [52]102 [2006] FCA 1243103 Ibid, at [789]104 [2016] FCA 1519, at [391]

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• The drawing of inferences and formation of opinions regarding continuity of the system and

its observance, with reference to what may be scant evidence over 200 years, including

historical sources and comparative analysis.

• In some cases, rather than opinion evidence, direct, primary evidence of facts in relation to

the claimant group based on a long term association and experience.105 106 107

Neate describes the role of the anthropologist in native title claims as:

providing information about the relevant group(s) and the nature of their traditional links to

land and providing expert opinions by way of analysis of the available data ...by way of a

written report or by giving oral evidence ... [which is] not only of interest and use in itself, but it

also provides a contextual background against which the testimony of the applicants’

witnesses can be better understood.™6

Mansfield J in Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory

of Australia™7 (Alyawarr) recognised three roles for anthropological evidence in native title claims.

Firstly, to “observe and record matters relevant to informing the court as to the social organisation of

an applicant claim group, and as to the nature and content of their traditional laws and traditional

customs.” Secondly, “by reference to ... historical literature and anthropological material, the

anthropologists “may compare that social organisation with the nature and content of the traditional

laws and traditional customs of their ancestors and to interpret the similarities or differences.” Finally,

the anthropologist may give evidence about the meaning and significance of what Aboriginal

witnesses say and do, so as to explain or render coherent matters which, on their face, may be

incomplete or unclear.”108 Similarly in CG (Deceased) on behalf of the Badimia People v State of

Western Australia™9 (Badimia), Barker J held that anthropological evidence assists the Court to see

more clearly ethnographic data which is otherwise viewed “through a lens misted over by time.”110

It is common for both anthropologists and historians to present historical evidence in native title

proceedings. Selway has suggested that in litigation generally, “[t]he use of... history, as an aspect of

legal reasoning is so pervasive that most of the time it is not even realised that it has occurred.”111

Historically-based evidence is received by the Courts as either the evidence of witnesses, judicial

notice of “matters of common knowledge,” or judicial “absorption of legislative facts” (being facts

related to questions of law or policy)112 (as discussed further below). In native title matters specifically,

one former Federal Court judge acknowledges these are “first and foremost, exercises in historical

fact finding.”113 Like anthropological evidence, the subject of historical enquiry is directed at the

105 Neate, G. “Management of native title cases by the Federal Court - does this affect the anthropologist’s role?” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 11 to 12106 Neate (2001), op cit, at 3 - 4107 [2004] FCA 472 at [89]108 Ibid, at [89]; referred to in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [478]109 [2015] FCA 204110 Ibid, at [119]111 Selway, B. “The Use of History and Other Facts in the Reasoning of the High Court of Australia” (2001) 20(2) University of Tasmania Law Review 130 at 148112 Van Krieken, R. "Law's Autonomy in Action: Anthropology and History in Court” (2006) 15 Social and Legal Studies 574 at 579113 Finn, P. “Law and History in Four Parts” [2005] ANZLH E-Journal 239241

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matters required by the Courts to satisfy the native title definition in s 223 of the Native Title Act, and

include the following:

• Proof of an identified group and descent from that group.

• Content of traditional laws and customs, and continued connection to land and waters

through their ongoing practice.

• Local or linguistic group boundaries, and whether occupation within those boundaries was

permanent or transient.

• Ceremonial sites.

• Indigenous place names and vocabularies.

• Genealogical data such as birth dates and places of ancestors.

• Activities carried out on the land since the assertion of sovereignty.

• Contact between Aboriginal and non-Aboriginal people in the claim area and impact of

European occupation.

• Whether claimants' ancestors have moved beyond the claim area region.114

Carter has identified two stages of inferential proof that historians may assist the Court in, namely

“historians’ tendency to take a broad ‘historical snapshot’ [which] may influence how courts assess

what evidence is considered relevant” and “historians’ experience in interpreting the colonial archive

[which] may inform the types of inferences that can reasonably be drawn.”115 Historical material is

central to the evidence of both those pursing native title claims and those responding to them. As

Reilly and Genovese point out, for those opposing a determination that native title exists “the historical

record is used to testify to the extent of the encroachment of European lives upon the lives of the

ancestors of the claimants.”116

An additional source for the introduction of facts into evidence in determinations of native title claims

is the concept of judicial notice, whereby the Court can have regard to facts which are within the

judge’s own knowledge and are accepted as notorious, commonly known or indisputable. Section 144

of the Evidence Act 1995 (Cth) (Evidence Act) provides that proof is not required about knowledge

that is not reasonably open to question and is common knowledge. In these circumstances, the judge

may acquire knowledge of that kind in any way the judge thinks fit, and the court is to take knowledge

114 Neate in Horrigan. and Young, op cit, at 312; Choo, C and M. O’Connell “Historical Narrative and Proof of Native Title” in Paul and Gray, op cit, at 12; Choo, C. and S. Hollbach, “The Role of the Historian in Native Title Litigation” (1999) 4(17) Indigenous Law Bulletin 7 at 7; Dreyfus, M. “Historians in Court,” in McCalman and McGrath, op cit, at 77; Gara, T. “History, Anthropology and Native Title” in Paul and Gray, op cit, at 73 - 74; Finn, op cit. Neate has summarised the primary sources that experts interpret and report upon in relation to these matters, as including journals and reports of European explorers, scientists and surveyors; diaries and journals of pastoralists or police officers; official reports of government officials such as native protectors; official correspondence between government officials and government reports; Court records; private correspondence; reports, theses, journal articles and books by anthropologist, historians, linguists and other social scientists; district histories prepared by local historical societies; records of local missions or missionary societies; company employment records; travel books, newspapers and popular magazines; and photographs, films and object in museum collections - Neate in Horrigan and Young, op cit, at 312 - 313115 Carter, op cit116 Reilly and Genovese, op cit, at 24

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of that kind into account. The application of this was noted by Lee J in Ward, where His Honour stated

“[i]n addition to taking judicial notice of the facts of history, whether past or contemporaneous, the

court, of course was entitled to rely on its own historical knowledge and research.”117

Various other examples of the exercise of judicial notice have been identified throughout the native

title case law, perhaps most notably the judgment of Deane and Gaudron JJ in Mabo, wherein Their

Honours noted that they had “been assisted not only by the material placed before us by the parties

but by the research of many scholars who have written in the areas into which this judgment has

necessarily ventured.”118 The influence of the broader scholarship on Deane and Gaudron JJ was

reinforced subsequently by Dean J having written to Henry Reynolds enclosing a copy of the Mabo

judgment, and drawing his attention to the page on which Reynolds’ works were footnoted.119

4. The Rules of Evidence and ProcedureThe starting point for evidence in native title determinations is s 82(1) of the Native Title Act, which

currently provides that the Federal Court is bound by the rules of evidence, except to the extent it

orders otherwise. This is in contrast to the section before it was amended in 1998, which provided that

the Court is not bound by the rules of evidence. The current s 82(1) is qualified in s 82(2) of the Native

Title Act, which provides that the Court may take account of the cultural and customary concerns of

Aboriginal and Torres Strait Islander peoples, but not so as to prejudice unduly any other party to the

proceedings. This qualification is consistent with the finding Lee J stated in Ward, prior to the

amendment of the Native Title Act, that “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.”120 121

In relation to the application of s 82(1) of the Native Title Act, RD Nicholson J held in Daniels v State

of Western Australia^ (Daniels) that dispensing with the rules of evidence would require some factor

for the court to otherwise order.122 Perry and Lloyd suggest that such factors include the weighing of

such cultural or customary concerns “against the prejudice produced to other parties,” as well as any

delay in making the application to dispense with the rules of evidence which might prejudice another

party, and in the cases of restrictions on access to evidence, “the extent of the restrictions sought and

117 (1998) 159 ALR 483 at 496118 [1992] HCA 23 at [53], [54] and [78] per Deane and Gaudron JJ, [41] per Dawson J and [18] perToohey J. See also Former Chief Justice Sir Anthony Mason, quoted in Hope, D. “Smokescreen nullius,” Weekend Australian, 25 - 26 February 2006, at Inquirer 22. Other examples include Wik Peoples v State of Queensland (1996) 141 ALR 129 per Toohey J at 170 and Kirby J at footnote 573. The influence of Reynolds work on the High Court in Wik was summarised by Beaumont J in Anderson v Wilson [2000] FCA 394 at [290].119 Reynolds, H. “Among Historians,” Race, Nation, History Conference, National Library of Australia, Canberra, 30 August 2008120 (1998) 159 ALR 483 at 504121 [2000] FCA 858122 Ibid, at [39]; See also Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 at [15]; Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 at [7] and [28]; Sampi v State of Western Australia (No 2) [2001] FCA 620 at [6]; Wilkes i/ State of Western Australia [2003] FCA 156 at [10]; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [7] - [15], [19] and [27]; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 8) [2004] FCA 338 at [82] and [83]; and Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 at [19] and [20],

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whether the evidence sought to be restricted is likely to comprise a substantial or significant part of

the evidence.”123

Whilst the cases suggest there is limited judicial appetite to dispense with the rules of evidence in

native title matters, as Black CJ noted, “the rules of evidence are themselves quite flexible ... The

court’s rules also allow for considerable flexibility.”124 Such matters, including amendments that

introduced even greater flexibility subsequent to these comments by Black CJ, are discussed further

below. Notwithstanding this, Gleeson CJ, Gummow and Hayne JJ noted in Yorta Yorta HCthat “a

rather broader base could be built for drawing inferences about past practices” under the pre

amended s 82, given its reference to “providing a mechanism of determination that is fair, just,

economical, informal and prompt.”125

In the context of the types of witnesses that generally give evidence in native title claims, there are

two exclusionary rules of evidence and a number of exceptions to those rules that are relevant.

Unchecked, the exclusionary rules would pose substantial impediments to the admissibility of

evidence necessary for native title claimants to make their case.

In relation to claim group member oral evidence of traditional laws and customs passed down from

generation to generation through the word-of-mouth transmission of knowledge, the rule in s 59 of the

Evidence Act would ordinarily be relevant. This section provides that evidence of a previous

representation made by a person is not admissible to prove the existence of a fact that can

reasonably be supposed that the person intended to assert by the representation (the Hearsay Rule).

However, there are three relevant exceptions to the Hearsay Rule. Firstly and secondly, there are the

general exceptions in s 73 and s 74 of the Evidence Act, in relation to evidence of reputation

concerning family history or a family relationship, and evidence of reputation concerning the

existence, nature or extent of a public or general right respectively. Thirdly, there is a specific

exception in s 72 of the Evidence Act which provides that the Hearsay Rule does not apply to

evidence of a representation about the existence or non-existence, or the content, of the traditional

laws and customs of an Aboriginal or Torres Strait Islander group.

Section 76 of the Evidence Act provides that evidence of an opinion is not admissible to prove the

existence of a fact about which the opinion was expressed (the Opinion Rule). However, there are

exceptions in relation to the Opinion Rule for both claim group member oral evidence and expert

evidence. Opinions expressed by a member of an Aboriginal or Torres Strait Islander group about the

existence or non-existence, or the content, of the traditional laws and customs of the group are

exempt from the Opinion Rule under s 78A of the Evidence Act. Similarly, s 79 of the Evidence Act

123 Perry, M. and S Lloyd, Australian Native Title Law, Law Book Company, Pyrmont, 2003 at 496124 Black, op cit, at 21. See for example the approaches of Cooper J in Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 at [28] and Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [39], wherein the Court treated hearsay statements in anthropological reports as going to weight rather than requiring the relevant people to attend and give testimony.125 [2002] HCA 58 at [81], referred to by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [337] where His Honour noted “[i]n amending s 82 to provide that the Court is bound by the rules of evidence, except to the extent that the Court otherwise orders, Parliament may have narrowed the potential basis for the drawing of inferences about past practices.”

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exempts from exclusion under the Opinion Rule opinions of a person that is wholly or substantially

founded on specialised knowledge based on that person’s training, study or experience.

Sections 72 and 78A of the Evidence Act have application in relation to native title proceedings that

commence after the commencement of these provisions on 1 January 2009. However, s 214 of the

Native Title Act allows the parties to consent to the application of these provisions or for the Court to

order that these provisions apply, where it is in the interests of justice that these provisions apply, in

relation to all native title proceedings.

The Federal Court Rules 2011 (Cth) (FCR) make various provisions in relation to the reception of

evidence generally and specifically to native title. In relation to experts, the FCR provides for:

• Court appointed experts, who are appointed by order of the Court on application by a party, to

inquire into and report on any question of facts relevant to any question arising in a

proceeding. A Court appointed expert must provide a report to the Court which will be

admissible as evidence at trial, and the expert may be subject to cross-examination on

application by a party.126

• A requirement that an expert called to give evidence must deliver an expert report which

complies with certain requirements, including particulars of their training, study or experience

by which they have acquired their specialised knowledge and confirmation that the expert’s

opinion is based on that specialised knowledge; and each of the factual findings or

assumptions on which the expert’s opinion is based, separate from the expert’s opinions, and

the reasons for the opinions (such requirements also apply to reports by Court appointed

experts).127

• Where experts are intended to be called by multiple parties, various ways in which the

experts go about their functions, including (on application by a party) orders by the Court that

experts confer before or after writing their reports; that the experts produce a document

identifying where their opinions align or differ; that all relevant factual evidence be adduced

prior to the expert giving evidence, and on completion of such evidence, the experts swear

affidavit material as to whether the expert adheres to their previous opinion or a different

opinion and the factual evidence on which such a different opinion is based; that the experts

give evidence consecutively or alternatively be sworn in concurrently and be cross-examined

and re-examined by putting to each expert in turn each question relevant to one subject or

issue at a time; that experts opine on the others’ opinions; and that the experts be cross-

examined and re-examined in any particular manner or sequence.128

Combinations of expert conferences and concurrent expert evidence, known as the “Hot Tub”

method, have been adopted in the Federal Court and in other jurisdictions. The benefits of this

approach is in overcoming potential bias or partisanship amongst experts; avoiding differences

126 Federal Court Rules 2011 (Cth) 23.01 - 23.03127 Ibid 23.11 and 23.14128 Ibid 23.15

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between experts leading to entrenched positions; ensuring matters the subject of evidence are within

the witness’ expertise; simplification of highly technical issues; and mitigating the limitations the

adversarial system places on a witnesses’ ability to assist the Court to assess competing opinions.129

Hughston and Jowett explain the benefit of such an approach as follows:

The hot tub method can serve to narrow the issues to those genuinely in dispute and can

facilitate intelligent and relevant consideration of expert opinion evidence. The approach

enables experts to explain their reasoning alongside a professional colleague, minimising the

chance that their evidence will be misunderstood or misconstrued. The judge and other

listeners have the benefit of multiple advisers who are ‘rigorously examined in public’. This

may mean that experts are more likely to focus on assisting the court to understand the

substance of the points at issue, rather than resorting to defending themselves and their

opinions and perhaps deflecting or straying from the issues. Another possible benefit of

experts appearing together is that they may be compelled to be more precise and accurate.130

The provisions of the FCR that are specific to native title claims provide that the rules of evidence

apply to native title proceedings subject to other provisions of the relevant division.131 Other aspects of

these provisions include the following:

• A party may apply to the Court for an order restricting access to transcripts or contents of

pleadings or other Court documents, or relating to the matter of presenting evidence, the time

and place where certain evidence is to be taken, the manner of identifying and referring to

evidence about specified subject matters, and relating to evidence about a cultural or

customary subject.132

• A party may by interlocutory application seek an order of the Court to take into account the

cultural or customary nature of a party or another person.133

• Provision is made for the giving of evidence, by way of singing, dancing, storytelling or in any

way other than in the normal course of giving evidence,134 for evidence in the form of

statements from a group of witnesses or a witness after that witness has consulted with other

persons,135 for evidence given at a time other than when the evidence would usually be

129 Hughston, V. and T. Jowett “In the native title ‘hot tub’: expert conferences and concurrent expert evidence in native title,” (August 2014) 6(1) Land, Rights, Laws: Issues of Native Title at 2 to 3; Farrell, R. 'Hot Tubbing’ anthropological evidence in native title mediations, National Native Title Tribunal Research Unit, June 2007, at 15; Rares, S. “Using the “Hot Tub” - How Concurrent Expert Evidence Aids Understanding Issues” Judicial Conference of Australia Colloquium, 12 October 2013 at 2 to 3. Examples of the use of this method include in Gumana v Northern Territory of Australia [2005] FCA 50; Yankunytjatjara/Antakirinja Native Title Claim Group v State of South Australia [2006] FCA 1142; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 3) [2010] FCA 1455; AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268; Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455; Banjima People v State of Western Australia (No 2) [2013] FCA 868; Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229; and CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204130 Hughston and Jowett, op cit, at 9131 Federal Court Rules 2011 (Cth) 34.120(1)132 Ibid, 34.120(2)133 Ibid, 34.121134 Ibid, 34.123135 Ibid, 34.125

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given,136 and for inspections of a place and consequential orders dealing with the associated

logistics.137

• Orders may be made for the appointment of an assessor to take evidence from a party, to

decide how the evidence is to be recorded and to prepare a report of the evidence for the

Court.138 139

• Various safeguards are provided for in relation to evidence that refers to material of a cultural

or customary nature that a party calls that is of a confidential or secret nature.130

In relation to these matters, Black CJ has identified the following common reasons why claimants

might seek orders restricting the hearing and publication of evidence:

• where matters under customary law are specific to one gender, it would be inappropriate to

speak about them in front of the other gender; and

• recording or transcribing evidence for others to read may be contrary to customary law, which

dictates that such matters be spoken of only in the presence of the listener.140

In addition, the Federal Court of Australia Act 1976 (Cth) (FCA) makes general provisions in relation

to safeguards relevant to native title trials. Section 17(4) of the FCA provides that the Court may order

the exclusion of the public or of persons specified from a sitting of the Court where it is satisfied that

the presence of the public or of those persons would be contrary to the interests of justice. These

include the Court may make a suppression or non-publication order in relation to information that

comprises evidence or information about evidence,141 and may do so if the order is necessary to

prevent prejudice to the proper administration of justice.142

Various other sections of the Evidence Act are also relevant to the way native title determination

hearings may be conducted. The Court may make such orders as it considers just in relation to the

way in which witnesses are to be questioned, and the presence and behaviour of any person in

connection with the questioning of witnesses,143 and the Court may, on its own motion or on the

application of the party that called the witness, direct that the witness give evidence wholly or partly in

narrative form.144

The approach of the Court in the hearing for Ward included a number of examples of the use of these

various measures. As summarised in Lee J’s judgment, this included on country hearings and

informality of proceedings as much as possible; views and inspections of landmarks, artefacts and

traditional activities and ceremonies; gender restrictions in relation to the audience for testimony and

access to records; and judicial consciousness of and vigilance for the complexities posed by

136 Ibid, 34.126137 Ibid, 34.127138 Ibid, 34.128; Native Title Act 1993 (Cth) s 83139 Federal Court Rules 2011 (Cth) 34.122, 34.123 and 34.124140 Black, op cit, at 23141 Federal Court of Australia Act 1976 (Cth) s 37AF142 Ibid, s 37AG143 Evidence Act 1995 (Cth) s 26144 Ibid, s 29(2)

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difference in language, nuance and gestures and comprehension of process in a question and answer

setting.145

Finally, s 138B of the Native Title Act makes provision for the National Native Title Tribunal (NNTT) to

hold an inquiry in relation to a matter or an issue relevant to the determination of native title under s

225, on the direction of the Federal Court (whether on its own motion, or at the request of a party to

the proceeding or a person conducting a mediation). This power applies where the Federal Court has

referred the whole or a part of a proceeding for mediation and the proceedings, in whole or in part,

raises a matter or an issue relevant to the determination of native title.146

In conducting the inquiry, the NNTT may receive into evidence the transcript and adopt any report,

findings, decision, determination or judgment of any court, person or body,147 may direct the holding of

conferences of the parties and their representatives to help resolve any relevant matter148 and may

hold hearings149 at which a party has a right to appear.150 Hearings must be held in private unless the

NNTT is satisfied it is appropriate to do otherwise (having regard to the cultural and customary

concerns of Aboriginal and Torres Strait Islander people).151 Parties may call witnesses before the

inquiry and the witnesses may be examined, but not cross-examined or re-examined without leave of

the NNTT.152 Once an inquiry is held, the NNTT must report to the Federal Court about the matters or

issues covered by the inquiry, including non-binding recommendations, and which must state any

findings of fact upon which the report is based.153 As at the date of this thesis, only one such inquiry

has been carried out by the NNTT, in relation to whether certain people should be included in the

claim group description for the Gaangalu Nation People claim (QUD4000/2012).

5. Conclusion to Chapter 1This Chapter provided the context of the native title claims process with regard to the key features of

the Native Title Act and how the evidentiary processes operate under it, including the Preamble and

Objects provisions of the Act, the definition of native title and the proof requirements drawn from it, the

matters which a native title determination must address, the types of witnesses and other evidence

relevant to native title claim hearings, and the rules of evidence and procedure that are relevant to

native title trials.

The acknowledgment in the Preamble to the Native Title Act of the need for a special procedure for

the just and proper ascertainment of native title, in a manner that has due regard for the unique

character of native title rights and interests, poses strong encouragement for the development of

Inference Guidelines Courts to assist the Court in delivering on the beneficial intent of the Act. The

challenges acknowledged by the Courts and elsewhere in relation to proof of native title arising from

145 (1998) 159 ALR 483 at 497146 Native Title Act 1993 (Cth) s 138A147 Ibid, s 146148lbid,s 150(1)149 Ibid, s 151(1)150 Ibid, s 152151 Ibid, s 154A(1), (3) and (5)152 Ibid, s 156(3). (4) and (5)153 Ibid, s 163A

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the interpretation of its statutory definition is also strong grounds for Inference Guidelines to be

developed to mitigate relevant challenges. These are foundational issues for consideration in the

answer to Research Question 1, regarding what gives rise to the inference imperative in native title

claims and which are developed across the remainder of this thesis.

Similarly, complications in relation to different types of evidence, and their inter-relationship, demand

guidance around how the Court’s ultimate inferential process should be applied to them. These

complexities may also be mitigated by the uptake of the various provisions which empower the Court

to adopt alternative evidentiary and procedural approaches to the fact-finding processes, to alleviate

difficulties posed by expert and claim group member oral evidence, and assist the Court in its overall

inferential reasoning which might otherwise be impaired by such complexities.

These matters form key bases for many of the previous calls for and attempts at reform of the native

title connection requirements, and the relevant recommendations in the ALRC Connection Report,

which are the subject of Chapter 2.

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Chapter 2 - The ALRC reform proposals and their drivers

Overview of Chapter 2The purpose of this Chapter is to identify the key ALRC Connection Report recommendations and

previous calls for or attempts at reform which are central to the issues the subject of this thesis.

Part 1 of this Chapter provides an overview of previous calls for reform directed at alleviating the

challenges faced by native title claimants in satisfying the evidentiary onus regarding maintenance of

connection. Parts 2 and 3 then set out how the concepts the subject of Part 1 were sought to be

implemented, ultimately unsuccessfully, in previous attempts at legislative reform.

Part 4 of this Chapter sets out the background and terms of reference for the ALRC inquiry, which is

followed in Part 5 with details of specific reforms proposed by the ALRC relevant to this thesis.

1. Eminent persons' calls for reformThe factual difficulties involved in prosecuting native title claims have been evident in various reviews

and public commentary, dating back well before the ALRC reform proposals.154 Prior to the ALRC

reform proposals, significant public commentary by then High Court Chief Justice Robert French and

former Prime Minister Paul Keating, who both called for a reversal of the onus of proof in native title

claims, brought the evidentiary difficulties confronting native title claimants squarely into the public

eye.

Then Chief Justice French, when speaking at the Native Title Users Group in Adelaide in July 2008,

noted the difficulties of proof faced by native title claimants, and said that the relevant requirements

“impose the burden of determining continuity of existence of their native title rights and interests upon

the applicants at least by inference or extrapolation from various kinds of evidence.”155 However, His

Honour appears to consider the use of inference or extrapolation in whatever form to be inadequate to

the task, and calls for amendments to the Native Title Act to “provide for a presumption in favour of

the existence of native title rights and interests if certain conditions are satisfied.”156 He then suggests:

A fact sufficient to engage such a presumption might be that the native title claim group

acknowledges laws and observes customs which members of the group reasonably believe to

be, or to have been, traditional laws and customs acknowledged and observed by their

ancestors. And if by those laws and customs the people have a connection with the land or

154 For example, Hiley, G. RFD QC and Dr K Levy RFD, Native Title Claims Resolution Review, prepared for the Attorney- General in response to the Terms of Reference for the “Review of the claims resolution process in the native title system,” 31 March 2006 at 18155 French, R. "Lifting the burden of native title some modest proposals for improvement" [2008] FedJSchol 18, http://www.austlii.edu.au/au/iournals/FedJSchol/2008/18.html (accessed 6 August 2017)156 Ibid

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http://www.austlii.edu.au/au/iournals/FedJSchol/2008/18.html

waters today ... then a continuity of that connection, since sovereignty, might also be

presumed. Such a presumption would enable the parties, if it were not to be challenged, to

disregard a substantial interruption in continuity of acknowledgment and observance of

traditional laws and customs ... unless and until proof of such interruption was established.

His Honour then sets out a useful summary of how such a presumption is distinct from mere

inference, in that in contrast to a platform for mere inference, the presumption must be “robust

enough” so as not to “collapse upon the introduction of evidence to the contrary whatever its probative

value.”157

He concludes his discussion with a suggested provision for inclusion in the Native Title Act to effect

the presumption. The presumption is to apply where the rights and interests are found to be

possessed under laws acknowledged and customs observed by the native title claim group who has

made the application; and that claim group reasonably believes those laws and customs are

traditional and have a connection with the land or waters by virtue of their laws and customs; and they

reasonably believe that their ancestors acknowledged and observed traditional laws and customs at

sovereignty by which those persons had a connection with the land or waters the subject of the

application. Where these criteria are satisfied, in the absence of proof to the contrary, it will be

presumed that the requirements for the laws and customs to be traditional and those acknowledged

and observed at sovereignty, and that by those the claim group has a connection with the claim area,

are satisfied. Further, provided the asserted native title rights and interests are capable of recognition

by the common law, the facts necessary for their recognition by the common law are established.158

In delivering the Lowitja O’Donoghue Oration at the University of Adelaide in 2011, former Prime

Minister Keating noted that:

native title should not be viewed as some museum-like strain of law which, snap frozen,

requires defrosting around anthropological principles, documentary records that rarely exist, if

they ever existed and an onus of proof built within rules of evidence which are calibrated so

as never being able to helpfully apply.'59

Keating noted the high onus on claimants arises from the proof of continuity requirements, which must

draw on anthropological, archaeological, historical and oral evidence of the maintenance of group

customary traditions, all the while notwithstanding “the rupture of European settlement had an

atomising effect upon Aboriginal society as a whole and on particular groups.”160 Keating claims it was

the intention of his Government “that native title be determined by the common law principles laid out

in Mabo,”161 in contrast to what has occurred in subsequent cases such as in Yorta Yorta, where “the

trial judge substantially lifted the bar on the whole issue of continuity”162 and in turn:

157 Ibid158 Ibid159 Keating, P. “Time to Revisit Native Title Laws” in Bauman T and L Click (eds), The Limits of Change: Mabo and Native Title 20 Years On, AIATSIS Research Publications, Canberra, 2012, page 412160 Ibid, at 413161 Ibid, at 411162 Ibid, at 414

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placed an unjust burden on those native title claimants who have suffered the most severe

dispossession and social disruption. It has substantially slowed the redress by Aboriginal

people to adequate recognition of their rights in respect of land, water and other natural

resources.163

Elsewhere Keating has stated that as the “test for proving continuity relied on “written traditions” and

was at odds with the “oral traditions” of Aboriginal people,” there was a desperate need for

amendments to the Native Title Act “so Aboriginal claimants no longer have to prove a continuous

association with their land.”164

Reversal of the onus of proof on continuity of connection has received support in other quarters, such

as from the National Native Title Council CEO Brian Wyatt,165 and from Justice North and Tim

Goodwin who have suggested an alternative basis to trigger such a reversal of the onus, as follows:

Applicants would need to show that there were Indigenous people at sovereignty occupying

the land in question according to traditional laws and customs. The onus would then shift to

the respondents to demonstrate that the other requirements of the Yorta Yorta test do not

exist.166

The shifting of the burden to State and Territory parties to rebut the presumption through proof of

substantial interruption of connection is supported by Tom Calma, the Aboriginal and Torres Strait

Islander Social Justice Commissioner, on the grounds of evidentiary convenience:

In most cases the government party would presumably take on the role of adducing evidence

to rebut the relevant presumptions. In my view, this is appropriate. Government parties

typically hold a lot of information relevant to the claim. Governments are also better resourced

than native title claimants. Significantly, governments are responsible for dispossession.167

Tony McAvoy SC in evidence before the Senate Standing Committee on Legal and Constitutional

Affairs, stated similarly:

The evidence which traditional owners inevitably have to rely upon for that period which is

beyond the living memory of traditional owners comes from the government. That material is

often in the hands of the government or government functionaries ... The state has the

resources and the capacity to look at the material itself. If it wants to challenge the continuity

163 Ibid, at 415164 Keating P, quoted in Cormack, B, “PM missed native title chance: Keating,” The Australian, 25 February 2013 http://www.theaustralian.com.au/national-affairs/indiaenous/pm-missed-native-title-chance-keatinq/news-Storv/77c649885e9e2c51990b493c73c2205a (accessed on 6 August 2017)165 Karvelas, P, “Julia Gillard has missed a 'golden opportunity' to reform native title, indigenous leaders say,” The Weekend Australian, 6 June 2012, http://www.theaustralian.com.au/national-affairs/indiqenous/iulia-qillard-has-missed-a-qolden- opportunitv-to-reform-native-title-indiqenous-leaders-sav/news-storv/563cbb7e15df13a2300dbcc1ffe106e6 (accessed 6 August 2017)166 North, Justice A.M. and T. Goodwin, “Disconnection - the Gap between Law and Justice in Native Title: A Proposal for Reform” 10th Annual Native Title Conference, Melbourne, 4 June 2009 at 14.167 Aboriginal and Torres Strait Islander Social Justice Commissioner, 2009 Native Title Report, Australian Human Rights Commission, Sydney, 2009, at 81https://www.humanriqhts.qov.au/sites/default/files/content/social iustice/nt report/ntreport09/pdf/ntr ch3.pdf (accessed on 6 August 2017)

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https://www.humanriqhts.qov.au/sites/default/files/content/social_iustice/nt_report/ntreport09/pdf/ntr_ch3.pdf

of particular people’s connection then let them do so. Let them access their own material and

do so.188

Other calls are directed at “interpretive reform,” namely “facilitating the judicial interpretation of

testimonial evidence about culturally different concepts, the judicial acquisition of such concepts and

the judicial understanding of culturally different actions implicating such concepts.”168 169 Connolly

suggests the aim of such reforms would be to ensure “the norms regulating the legal process be

reformed in a manner oriented towards both the reduction of the degree of relevant conceptual

differences between judge and culturally different actions” at the outset of a trial and “the cultivation of

interpretively and concept-acquisitively conducive epistemic conditions over the course of such

hearings.”170 These reforms are directed at alleviating the challenges faced by claimant witnesses

identified in Chapter 5, including the enhanced use of a number of the evidentiary and procedural

measures already available to the Courts and identified in Part 4 of Chapter 1.

2. Native Title Amendment (Reform) Bill 2011Attempts were made unsuccessfully in 2011/2012 by the Australian Greens Party to amend the

Native Title Act and introduce a presumption of continuity. In the explanatory memorandum for the

Native Title Amendment (Reform) Bill 2011 (Cth), it was noted:

It is widely recognised that the evidential burden of proving native title is significant and indeed

so significant as to arguably undermine the purpose and intent of the Native Title Act. The

United Nations Committee on the Elimination of Racial Discrimination has noted this issue

recognising that the high standard of proof required has the consequence that many indigenous

peoples are unable to obtain recognition of their relationship with their traditional lands.171

In that Bill, Chief Justice French’s proposed provision was to a significant extent sought to be adopted

verbatim, but with additional provisions clarifying what will, and what will not, be relevant to set aside

the presumption. Namely, the presumption may be set aside upon evidence of a substantial

interruption in the acknowledgment of the traditional laws or the observation of those traditional

customs. However in considering such evidence, the Court must have regard to whether the primary

reason for such a demonstrated interruption or significant change to such laws and customs

acknowledged and observed is the action of a State or Territory or a non-Aboriginal or Torres Strait

Islander person.172

The Bill also sought to introduce amendments to the section of the Native Title Act which defines

native title, relating to change in traditional laws and customs, providing that a law or custom would

remain traditional if it remained identifiable through time, regardless of whether there is a change in

168 McEvoy, T. Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Sydney, 16 April 2009, at 21, quoted in ibid at 82169 Connolly, op cit, at 198170 Ibid, at 198-199171 Committee on the Elimination of Racial Discrimination, Concluding Observations of the committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005) para 17, quoted in Native Title Amendment Bill 2011 (Cth) Explanatory Memorandum, page 2172 Native Title Amendment (Reform) Bill 2011 (Cth), s 12, proposed new Native Title Act 1993 (Cth) s 61 AB

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those laws or customs or in the manner in which they are acknowledged or observed, negating a

need for continuous maintenance of connection in any case, and recognising commercial native title

rights and interests.173

In addition, this Bill sought to insert a new s 3A into the objects of the Native Title Act, so an additional

object would be that governments in Australia take all necessary steps to implement principles of the

United Nations Declaration on the Rights of Indigenous People (UNDRIP), such that the provisions of

the Native Title Act are to be interpreted and applied in a manner consistent with that Declaration and

these principles must, in every relevant case, be applied by each person exercising a power or

performing a function under the Native Title Act. Presumably such interpretive provisions were

intended to direct the Court, among other things, to consider the racially discriminatory effects of any

evidential requirements directed at native title parties. Aspects of the international law considerations

are addressed further in Chapter 3.

3. Native Title Amendment (Reform) Bills 2012 and 2014The Greens again attempted to amend the Native Title Act to give effect to the above matters in the

Native Title Amendment (Reform) Bill (No. 1) 2012 (Cth) and (in identical terms) in the Native Title

Amendments (Reform) Bill 2014 (Cth). The 2012 and 2014 Bills largely mirror the 2011 Bill, although

the UNDRIP objects were not included and the proposed s 61 AB was substantially redrafted, to drop

the express reference to the ability to set aside the presumption where there is evidence of

substantial interruption in the acknowledgment of traditional laws or the observation of those

traditional customs. In its place, this proposed section merely states that the requirements of s 223(1)

may be determined as satisfied if the primary reason for a substantial interruption or change is the

action of a State, Territory or non-Aboriginal or Torres Strait Islander person.

All three of the Greens Bills were unsuccessful, and a presumption of continuity has not received

governmental support. The then Attorney-General cited inadequate discussion or agreement on how

reversing the onus of proof would work, the need for more technical work, and a preference for

“incremental but significant changes that can improve the Native Title Act.”174

4. ALRC Connection Report terms of referenceThe then Commonwealth Attorney-General, the Hon. Mark Dreyfus MP, announced the establishment

of the ALRC inquiry into “Native Title law - Twenty Years and Beyond” on 5 June 2013, with the

following justification given for establishing the inquiry:

The Native Title Act turns twenty this year. The time has come to consider how to improve

native title law and encourage faster, simpler resolution of native title claims for all parties. We

173 Ibid, proposed new Native Title Act 1993 (Cth) ss 223(1 A) - (1D) and replaced s 223(2)174 Roxon, N, quoted in Cullen, S “Government to speed up Native Title Claims” ABC News, 7 June 2012, http://www.abc.net.au/news/2012-06-06/aovernment-to-speed-up-native-title-claims/4055290 (accessed on 6 August 2017)

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must make sure that the law helps to unlock the economic potential of native title for

Indigenous Australians.'75

Subsequently the then Attorney-General announced the finalised terms of reference for the ALRC

inquiry, as follows:

The Native Title Act 1993 has now been in operation for 20 years, so it is timely to take an in-

depth look at some key areas of the Act and how well it works in practice.'76

Greater particularisation for why the ALRC inquiry was considered necessary is apparent from the

ALRC’s March 2014 Issues Paper, which identifies the unduly limiting nature of the connection

requirements for proof of native title, particularly in situations of extensive dispossession of claimant

groups, and concerns about the complexity, length and difficulty of native title proceedings

generally.175 176 177 178 In relation to consideration of connection requirements by the ALRC, the Commonwealth

Attorney-General’s Department noted:

The connection process is a very important and complex area of the native title system, and

therefore, any reform proposals in this area require thorough and detailed consideration and

wide ranging stakeholder consultation. Any amendments to the Act affecting connection would

fundamentally alter the current operation of the Act.'78

The terms of reference for the ALRC Connection Report included considering changes to improve the

operation of native title laws and legal frameworks regarding (as relevant to this thesis) the following

aspects of the Native Title Act:

• connection requirements relating to the recognition and scope of native title rights and

interests, including but not limited to whether there should be:

• a presumption of continuity of acknowledgement and observance of traditional laws

and customs and connection

• clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of

culture and recognition of ‘native title rights and interests’

• clarification that ‘native title rights and interests’ can include rights and interests of a

commercial nature

• confirmation that ‘connection with the land and waters’ does not require physical

occupation or continued or recent use, and

175 Dreyfus, M, J. Macklin and G Gray, “New Australian Law Reform Commission inquiries announced,” media release, 5 June 2013, http://www.formerministers.dss.qov.au/13054/new-australian-law-reform-commission-inquiries-announced/ (accessed 19 September 2017)176 Dreyfus, M. and J Macklin “Terms of reference for native title law inquiry announced” media release, 3 August 2013,http://www.formerministers.dss.qov.au/12978/terms-of-reference-for-native-title-law-inquirv-announced/ (accessed 19 September 2017)177 Australian Law Reform Commission, Review of the Native Title Act 1993 Issues Paper (IP 45), March 2014, at 13178 Commonwealth Attorney-General’s Department, op cit, at 4

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• empowerment of courts to disregard substantial interruption or change in continuity of

acknowledgement and observance of traditional laws and customs where it is in the

interests of justice to do so.17B

Importantly, the terms of reference did not specifically refer to any need for reforms to introduce

Inference Guidelines. These emerged independently as a recommendation by the ALRC, in

preference to a presumption of continuity, as discussed further below. For this reason, the ALRC was

not presented with a set of policy principles to guide its recommendations around Inference

Guidelines specifically. However, in the context of calls for greater inference drawing by State

respondents in potential consent determinations, Duff has suggested policy considerations such as

the capacity of native title to promote Indigenous economic development and reduce disadvantage;

enhanced trust and cooperation arising from native title negotiations; and the sheer economic cost of

gathering and assessing detailed connection material.179 180

5. ALRC Connection Report recommendationsA key tone of the ALRC Connection Report is its findings (consistent with the submission of the Law

Council of Australia) that “the law relating to connection requirements remains complex to navigate for

all parties, and variable in its outcomes for Aboriginal and Torres Strait Islander peoples across

Australia.”181 Further:

the ‘laws and customs’ model for recognising and determining native title fulfils the important

function of recognising native title, but it contributes to a complex legal test for connection in

the Native Title Act that calls for considered reform. In addition, statutory construction of s 223

of the Native Title Act has expanded the requirements for proof of native title beyond the

elements contained in the actual definition in the Act.'82

These standards are “in tension with the object of the Native Title Act to recognise and protect native

title, especially given an often incomplete historical and anthropological record.”183

The ALRC Connection Report therefore makes 30 recommendations to “retain the framework of

native title derived from Mabo [No 2] but address entrenched difficulties in the proof of native title.”184

Consistent with its terms of reference, the ALRC Connection Report includes a chapter devoted to

recognising the peculiar challenges which apply to proof of native title. The key output of this chapter

is the recommendation as follows:

Recommendation 7-1 The Native Title Act 1993 (Cth) should provide guidance regarding

when inferences may be drawn in the proof of native title rights and interests. The Act should

provide that the Court may draw inferences from contemporary evidence that the claimed

179 ALRC (April 2015), op cit, at 5 - 6180 Duff, op cit, at 17181 ALRC (April 2015), op cit, at 16182 Ibid183 Ibid, at 22184 Ibid, at 16

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rights and interests are possessed under the traditional laws acknowledged and traditional

customs observed by the native title claim group.185

The ALRC Connection Report proposes Recommendation 7-1 as an alternative to recommendations

made elsewhere in the report, namely Recommendations 5-2 and 5-3, in the event these

recommendations are not implemented.186 Recommendations 5-2 and 5-3 are as follows:

Recommendation 5-2: The definition of native title in s 223 of the Native Title Act 1993 (Cth)

be amended to clarify that it is not necessary to establish that the acknowledgement of

traditional laws and the observance of traditional customs have continued substantially

uninterrupted since sovereignty.

Recommendation 5-3 The definition of native title in s 233 of the Native Title Act 1993 (Cth)

be amended to clarify that it is not necessary to establish that traditional laws and customs

have been acknowledged and observed by each generation since sovereignty.187

These and some other recommendations contained in the ALRC Connection Report acknowledge

that “[o]ver time, an expanded set of requirements for determining native title has been articulated

beyond the elements contained in the express definition of native title” and “there are new matters

requiring evidence, certainly beyond those indicated either by the judgments in Mabo [No 2] or the

strict words of s 223(1 ).”188

Recommendation 7-1 differs from Recommendations 5-2 and 5-3 in that the latter are directed at

paring back the additional requirements which have, over time, been imposed on those seeking to

prove native title, whether by dispensing with such requirements or clarifying their non-application.

Recommendation 7-1 is directed at assisting the Court to draw inferences as to continuing

acknowledgement and observance of laws and customs, irrespective of how native title is defined for

the purposes of proof. It is therefore not necessarily the case that Recommendations 5-2 and 5-3 and

Recommendation 7-1 are alternatives to each other - indeed there is nothing in the ALRC Connection

Report to suggest these are necessarily limited in this way.

This is particularly so as the ALRC found the reforms to the definition in s 223 are preferable to any

introduction of a rebuttable “presumption of continuity of acknowledgement and observance of

traditional laws and customs and connection,” but did note the value of importing guidance “regarding

when inferences may be drawn in the proof of native title rights and interests” into the Native Title Act

to supplement the benefits of the s 223 reforms.189 190

Inferences are also commonly referred to as "presumptions of fact,” in contrast to a reversal of the

onus of proof or presumption of continuity which is a “presumption of law,” being “rules of evidence

that affect how a fact in issue is proved.”100 A Court is obliged to draw a presumption of law, but it is for

the trier of fact whether to draw a presumption of fact. However, Heydon, (quoted by the ALRC)

185 Ibid, at 220186 Ibid, at 221187 Ibid, at 146188 Ibid, at 74189 Ibid, at 22,211,216-222.190 Ibid, at 32, with reference to Heydon, J.D., LexisNexis, Cross on Evidence, Vol 1 (at Service 164) [7255]

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describes a presumption of fact as working such that “the party proving the basic fact is likely to win

on the issue to which the presumed fact relates, in the absence of evidence to the contrary adduced

by the other party.”191

The distinction between an inference and presumption has been summarised as follows:

an inference or conclusion differs from a presumption, ... a presumption in strictness is an

inference as to the existence of one fact, from a knowledge of the existence of some other fact,

made solely by virtue of previous experience of the ordinary connection between the known

and inferred facts, and independently of any process of reason in the particular instance.192 193

The ALRC’s grounds for preferring “an increased willingness to draw inferences to satisfy the burden

of proof” in native title over a presumption of continuity included impacts on the quality of material

made available to foster consent determinations; doubts around whether a presumption of continuity

would reduce the burden on claimants due to the likelihood respondents would continue to test and

challenge the elements of the presumption; a loss of control over research by claimants; and existing

Federal Court case management processes already accomplishing much of what a presumption of

continuity would.103

However, the ALRC does distinguish a presumption of continuity from the situation where evidence of

commonly recurring situations may place a provisional burden on respondent parties to bring

evidence to challenge the drawing of such inferences.194 These matters, are discussed further in

Chapters 7 and 8 in relation to a tactical burden.

Both sets of recommendations are also directed at realigning matters of native title proof with the

Native Title Act’s status as beneficial legislation.195 In this regard, the ALRC Connection Report states

that:

The ALRC considers that, similarly to proof of custom at common law, it is appropriate to

make clear in the Native Title Act that the inference that the claimed rights and interests are

possessed under traditional laws and customs is available from contemporary evidence ...

this approach to the drawing of inferences is increasingly necessary if the beneficial purpose

of the Act is to be sustained as the date of Crown assertion of sovereignty grows more

distant.196

Recommendation 7-1 is directed at facilitating “the drawing of inferences of fact in defined

circumstances, while recognising that the extent of evidence required to establish native title is in

tension with the object of the Act to recognise and protect native title.197 The challenges to proof of

191 Australian Law Reform Commission, Review of the Native Title Act 1993 Discussion Paper (DP 82), October 2014, at 90, quoting Heydon, J.D. LexisNexis, Cross on Evidence, Vol 1 (at Service 164) [7215]192 Starkie, T, quoted in J James, G. F. “Relevancy, Probability and the Law” (September 1941) 29(6) California Law Review 689 at 696 fn 14193 Ibid, at 86 - 89194 ALRC (April 2015), op cit, at 222195 Ibid, at 74 and 78196 Ibid, at 226107 Ibid, at 26

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native title that this recommendation is directed at mitigating is summarised in the ALRC Connection

Report as follows:

Under the Native Title Act, the legal determination of rights and interests possessed under

laws and customs with origins in the pre-sovereign period is deferred for some 200 years.

This poses an acute practical and metaphysical problem of proof for native title claimants. It

contributes to the transaction costs experienced by parties involved in determining native title

‘connection’. There are inherent difficulties in producing evidence of a long-distant past and

connecting it to the present.™*

In this regard, the ALRC considers “a willingness to draw inferences in support of continuity of

connection is increasingly necessary if the beneficial purpose of the [Native Title Act] is to be

sustained as the date of Crown assertion of sovereignty grows more distant.”169 These issues are

further expanded upon in the review of the historiographic debates, in Chapter 4. As the ALRC has

noted, these challenges are not lost on the Federal Court, such as in relation to the following:

• The lack of written records, for example:

Claimants in native title litigation suffer from the disadvantage that, in the absence of a written

tradition, there are no indigenous documentary records that enable the Court to ascertain the

laws and customs followed by Aboriginal people at sovereignty. While Aboriginal witnesses

may be able to recount the content of laws and customs acknowledged and observed in the

past, the collective memory of living people will not extend back for 179 or 180 years.198 199 200

• Where there are written records, the disadvantage posed by the ethnocentric lens of many

authors, for example:

the historical record is incomplete. ... The nature of these 'silences' and the manner in which

they should be addressed... bears directly upon the approach the Court must take in order to

interpret the expert and witness evidence, and to derive the inferences that of necessity must

be made, in order to decide upon the issues in contention. ...the records of police and

pastoralists are ethnocentric; there is a lack of continuity of anthropological observation of the

customs, practices and lifestyles of Aboriginal people, and Europeans generally ... did not

identify people by tribe or language.201

And for example:

An historical source document is only as objective as its author. Therefore, it is reasonable

that an expert historian would adopt a methodology requiring a critical reading of source

documents.202

And further, for example:

198 Ibid, at 76199 ALRC (October 2014), op cit. at 93200 Jango v Northern Territory of Australia (2006) 152 FCR 250 at [462] per Sackville J, quoted in ALRC (April 2015), op cit, at 213201 Daniel v State of Western Australia [2003] FCA 666 at [149] referenced in ALRC (April 2015), op cit, at 213 fn 18202 Risk v Northern Territory of Australia [2006] FCA 404 at [135], referenced in ALRC (April 2015), op cit, at 213 fn 18

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early records made by European amateur and professional ethnographers are limited by the

ethnocentric views of the writers and by the limits on their understanding of the language and

culture of those about whom they wrote.203

As further discussed in Chapter 8, these and other factors already motivate the Courts to rely on

inferences in native title determinations, where appropriate circumstances are satisfied. The ALRC

recognises this, as this recommendation is directed at providing “legislative affirmation of the practice

of the Federal Court in drawing inferences in relation to proof of native title”204 (which is the subject of

research question number 2 in this thesis).

As an example of a matter that legislative guidance for inference from contemporary sources would

be beneficial, the ALRC Connection Report cites the following submission of Central Desert Native

Title Services:

where there are gaps in the documentary evidence but where reasonable evidence of

contemporary connection could be extrapolated to continuity of connection since sovereignty,

for example where connection of grandparents and great grandparents to a particular area

are within claimants living memories.205

The ALRC Connection Report also highlights the role of inference in consent determinations, noting

the approach taken by the Northern Territory and South Australian governments in relation to

beneficial inferences, particularly around claimant assertions on genealogy and on historical

assertions where there is no other evidence.206 As noted by the ALRC, the South Australia

Government submitted:

inferences tend to be drawn based on genealogical and anthropological information that link

‘snapshots’ in time periods. The question of interruption is rarely raised without some other

(usually historical) evidence suggesting that interruption may be relevant and it is then

discussed with the applicant.207

Accordingly, the ALRC saw fit to acknowledge that practical developments have already occurred in

the processes of both the Court and the parties to proceedings, such that inferential reasoning was

applied to “fill the gaps in continuity where appropriate.”208 The extent of this is examined further in

Chapter 8.

203 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 at [441], quoted in ALRC (April 2015), op cit, at 213204 ALRC (April 2015), op cit, at 221. This Report cites a number of instances of the Federal Court seeing fit to draw inferences in native title cases - Ibid, at 222 - 224, such as in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; Gumana v Northern Territory of Australia and Others [2005] FCA 50; Jango v Northern Territory of Australia [2006] FCA 318; Badimia; AB (deceased)(on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268; and Lander v State of South Australia [2012] FCA 427205 ALRC (April 2015), op cit, at 222; ALRC (October 2014), op cit, at 92206 ALRC (April 2015), op cit, at 224207 ALRC (October 2014), op cit, at 108 -109208 Ibid, at 109

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6. Conclusion to Chapter 2This Chapter identified the key ALRC Connection Report recommendations, specifically the

recommendation for the development of Inference Guidelines, as well as previous calls for and

attempts at relevant reforms. It also analysed the bases on which the ALRC identified there is an

inference-imperative in native title determinations.

Rather than embracing the recommendations for a presumption of continuity of connection made

previously by various persons, and previously the subject of unsuccessful reform bills, the ALRC

Connection provides alternative, measured and pragmatic recommendations in relation to the reform

of proof of connection requirements. Such alternatives include recommendations to amend the

definition of native title in the Native Title Act, which may pose the potential for material change in the

proof requirements for native title.

The other option put forward in the ALRC Connection Report, the inclusion of Inference Guidelines in

the Native Title Act, need not result in any divergence from the current requirements of proof of native

title. However, these would provide clarity for the Courts. Hopefully, Inference Guidelines would also

provide greater consistency of outcomes for participants in the native title trial process, particularly

having regard to the burdens imposed by the specific types of evidence relevant to native title.

Usefully, the ALRC Connection Report justifies the need for Inference Guidelines by identifying a

number of the evidentiary challenges which are analysed further in the relevant literature in Chapter 4,

the literature, judicial tools and case law the subject of Chapter 5, and the case law analysed in

Chapters 7 and 8. The extent to which there is already a set of existing consistent principles

applicable to inferential reasoning in native title matters is the subject of Research Question 2. On a

preliminary basis, it is clear from the various caselaw references throughout the ALRC Report that the

ALRC itself was conscious of the presence of pre-existing principles and had commenced the process

to identify how these have been applied. This and the analysis in subsequent Chapters of this thesis

will ultimately support a largely affirmative finding on Research Question 2.

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Chapter 3 - The judicial-historical endeavour

Overview of Chapter 3This Chapter and Chapters 4 and 5 develop on the matters considered in the previous Chapters, to

set out a more comprehensive consideration of the issues which drive the need to alleviate the

evidentiary challenges faced by native title claimants in relation to maintenance of connection by the

observance and exercise of traditional law and custom. This is referred to as “the inference imperative

in native title.”

This Chapter 3 considers the literary context for why it is imperative that reform in this area be

addressed, drawing on common themes identified throughout the international and Australian

literature on remedial justice for indigenous peoples. The purpose of this Chapter is therefore to

analyse what is termed the “judicial-historical endeavour” drivers of the need to take steps to address

the evidentiary challenges faced by native title claimants. In summary, the concept of a judicial-

historical endeavour is derived from drivers analysed in this Chapter, which include:

• The international law drivers for achieving appropriate outcomes - including a “right to know”

and the right to develop and transmit that knowledge, which is the subject of Part 1 of this

Chapter.

• The role that judicially-sanctioned preservation of knowledge can play in promoting

reconciliation, as analysed in Part 2 of this Chapter.

• A similar motivation to foster a legitimately pluralist concept of national identity and collective

memory, which is considered in Part 3 of this Chapter.

• The motivation to protect and preserve historical knowledge, and perhaps more importantly,

acknowledge that the scrutiny placed on judicially-sanctioned versions of the past is elevated

by the subsequent publication of histories based on the evidence prepared for trial purposes,

which is analysed in Part 4 of this Chapter.

• The imperative of having a robust methodology to judge competing evidence for public

confidence in the law and the judicial system, particularly having regard to emotive matters

such as shared history and rights to land, which is the subject of Part 5 of this Chapter.

The concept of a judicial-historical endeavour also ties in with the matters the subject of Chapters 4

and 5, being an “endeavour” to assess evidence of the past having regard to the specific challenges

and obstacles posed for particular sources of evidence.

It may be argued that these rights and motivations are for Aboriginal people and Torres Strait

Islanders subsidiary to the real issue which is the recognition of rights and interests in land and

waters. However, for some this may be a contentious assertion, and these issues are at least ancillary

to the evidential challenges that crucially must be overcome in any case.

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1. International lawFundamental human rights in relation to a people’s rights to know what has happened in their past,

and obligations on nation states to provide mechanisms that effectively facilitate the needs of such a

right to know, are evident in various instruments of international law. This is reflected in the attempts

to amend the objects of the Native Title Act to include that governments in Australia take all

necessary steps to implement the principles of UNDRIP, as discussed in Chapter 2. Article 13 of

UNDRIP recognises the right of indigenous peoples to “revitalize, use, develop and transmit to future

generations’” both their histories and their oral traditions (amongst other things), as well as the

obligation on States to “take effective measures to ensure that this right is protected.” Article 15

recognises the rights of indigenous people to the “dignity and diversity” of their histories, “which shall

be appropriately reflected in education and public information.”209

Hausler argues the fact that proof of native title and associated concepts globally rests on oral

histories and traditions boosts the importance of such oral traditions given their key to affirming other

substantive rights.210 An example of such a substantive right is recognised in Article 27 of UNDRIP,

which requires that States establish and implement an appropriate process, in which Indigenous

people can participate, to recognize and adjudicate the rights of indigenous peoples to traditionally

owned or occupied lands.211

There are various other examples where it appears international law demands processes that provide

adequate recognition of the histories of specific communities. In the context of human rights

violations, principles 2 and 3 of Part II of the United Nations Commission on Human Rights Updated

set of principles for the protection and promotion of human rights through action to combat impunity

(8 February 2005),212 213 recognises that “every people has the inalienable right to know the truth about

past events,” and that a State has a duty to preserve archives and other evidence for the purpose of

preserving collective memory from extinction. Further, Principle 5 provides that:

States must take appropriate action, including measures necessary to ensure the

independent and effective operation of the judiciary, to give effect to the right to know.

Appropriate measures to ensure this right may include non-judicial processes that

complement the role of the judiciary.2™

An intention to seek to avoid any repetition of historical misdeeds is a further aim of such international

principles. The Inter-American Commission on Human Rights has held that “[t]he right of a society to

209 United Nations Declaration on the Rights of Indigenous People, 61/295, 13 September 2007 http://www.un.orq/esa/socdev/unpfii/documents/DRIPS en.pdf (accessed 24 August 2017)210 Hausler, K. “Indigenous perspectives in the courtroom" (January 2012) 16(1) The International Journal of Human Rights 5*1 at 54211 http://www.un.orq/esa/socdev/unpfii/documents/DRIPS en.pdf (accessed 24 August 2017)212 United Nations Commission on Human Rights, Updated set of principles for the protection and promotion of human rights through action to combat impunity (8 February 2005) http://www.derechos.org/nizkor/impu/principles.html (accessed 24 August 2010)213 Ibid

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http://www.un.orq/esa/socdev/unpfii/documents/DRIPS_en.pdf


http://www.derechos.org/nizkor/impu/principles.html

have full knowledge of its past is not only a mode of reparation and clarification of what has

happened, but is also aimed at preventing future violations.”214

Article 2 of the International Labour Organisation Convention on Indigenous and Tribal Peoples 1989

requires that “Governments shall have the responsibility for developing, with the participation of the

peoples concerned, coordinated and systematic action to protect the rights of these peoples and to

guarantee respect for their integrity.”215 Importantly, this Article recognises the potential

disadvantages that certain societies may have in such a process, and further demands that such

peoples be placed on an equal footing to other members of the population. Whilst not specifically

referring to evidential complexities, it seems reasonable to interpret these provisions as contemplating

such matters, particularly having regard to the reference elsewhere in the Article to the requirement

that rights be realised with respect for such persons’ “social and cultural identity, their customs and

traditions and their institutions.”216

2. ReconciliationReconciliation in the intra-national and international arena has also been acknowledged as

fundamentally driven by appropriate mechanisms for determining the detail of historical events.

Reconciliation Australia defines reconciliation as being “about helping all Australians to move forward

with a better understanding of the past and how the past affects the lives of Indigenous people

today.”217 The source of such sentiments can be traced back at least as far as the genesis of

Aboriginal land rights in Australia itself, with the architect of Aboriginal land rights, Woodward J,

among those who argued that “to address the injustices of the past and their continuing effects” was

central to the promotion of “social harmony and stability."218 219 Similarly the “general public’s ignorance

of the history” was a key impetus for the establishment of the Human Rights and Equal Opportunity

Commission (HREOC) National Inquiry into the Separation of Aboriginal and Torres Strait Islander

Children from Their Families.2™

More recently, the Canadian Truth and Reconciliation Commission found:

Too many Canadians know little or nothing about the deep historical roots of these conflicts.

This lack of historical knowledge has serious consequences for First Nations, Inuit, and Metis

214 Inter-American Commission on Human Rights, Monsignor Oscar Arnulfo Romero Y Galdamez, El Salvador, Report No. 37/00, Case 11.481, April 13, 2000 http://www.cidh.orq/annualrep/99enq/merits/EISalvador11.481 a.htm# ftn147 (accessed 6 March 2010) at paragraph 148. Similar sentiments are noted in Commission for Reception, Truth and Reconciliation in Timor- Lest (CAVR), Chega! The Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste, April 2006, at Part 3 page 5 http://www.cavr-timorleste.org/en/cheqaReport.htm and the 1993 report of the Chilean National Commission on Truth and Reconciliation (see Orford, A. “Commissioning the Truth,” 15 Colum. J. Gender & L. 851 2006 at 855); For other examples see Orentlicher, D. Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, United Nations Commission of Human Rights E/CN.4/2004/ 88 27 February 2004, http://daccess-dds-nv.un.orq/doc/UNDQC/GEN/G04/113/55/PDF/G0411355.pdf?OpenElement (accessed 6 March 2010) at paragraph 18215 http://www.ilo.orq/dvn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P1210Q ILO CODE:C169 (accessed on 20 September 2017)216 Ibid217 Quoted in Ritter, D. The Native Title Market, University of Western Australia Press, Crawley, 2009, at 64218 Van Krieken (2006) at 582219 Human Rights and Equal Opportunity Commission, Bringing them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Sydney, April 1997, at 18

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http://www.cavr-timorleste.org/en/cheqaReport.htm

http://daccess-dds-nv.un.orq/doc/UNDQC/GEN/G04/113/55/PDF/G0411355.pdf?OpenElement

http://www.ilo.orq/dvn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P1210Q_ILO_CODE:C169

peoples, and for Canada as a whole. In government circles, it makes for poor public policy

decisions. In the public realm, it reinforces racist attitudes and fuels civic distrust between

Aboriginal peoples and other Canadians. ... History plays an important role in reconciliation;

to build for the future, Canadians must look to, and learn from, the past.220

Whilst the Courts have on various occasions and to varying extents sought to distance themselves

from such a function,221 the role of the judicial-historical endeavour in reconciliation remains popularly

acknowledged. This can be “to demonstrate that even in terms of ‘settler’ law, as it ought to have

been applied, [Aboriginal peoples’] ancestors had certain legal rights and that the historical denial of

those legal rights was unlawful.”222 Osiel argues that Courts “employ the law of evidence, procedure,

and professional responsibility to recast the courtroom drama in terms of the “theater of ideas,” where

large questions of collective memory and even national identity are engaged ... [and thereby]

contribute to social solidarity.”223 For this to be effective, it must be transparent, as argued by Posel:

Precisely because of the partialities, distortions, and violations of the past, the project of

national reconciliation is closely linked to the robustness of the truths invoked in its name. ...

Any whiff of distortion, any hint of lingering bias or suppression, would likely delegitimise the

political project to which the project of truth telling is yoked.224

Osiel argues that through an appropriate judicial-historical endeavour, Courts can contribute to

solidarity even where there is no consensus on a single, shared interpretation the past, in that

“proceedings [may be] founded on civil dissensus. They produce the kind of solidarity embodied in the

increasingly respectful way that citizens can come to acknowledge the differing views of their

fellows.”225

3. National identity and legitimacyThere is also significant commentary, both in Australia and beyond, regarding the importance of the

judicial-historical endeavour to considerations of national identity and legitimacy. Orford describes a

role for Courts in transforming “the country’s fragmented ‘collective memory’ into a shared national

history.”226 Similarly Barkan argues that “[t]he very recognition of one’s narratives has become a basic

identity need, a contested territory” which can be appropriately harnessed “into a force for rebuilding

the nation.”227

220 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future. Summary of the Final Report of the Truth and Reconciliation Commission of Canada, 2015 at 8.http://www.trc.ca/websites/trcinstitution/File/2015/Honourinq the Truth Reconciling for the Future July 23 2015.pdf(accessed 20 November 2017)221 Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136, per Crispin J at [60]; Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] 1606 FCA222 Walters, M.D. “Towards a ‘taxonomy’ for the common law: legal history and the recognition of Aboriginal customary law” in Kirkby, D. and C. Coleborne, Law, history, colonialism - The reach of empire, Manchester University Press, Manchester, 2010 at 138223 Osiel, op cit, at 3. See also at 38 in the context of the Eichmann and Videla trials.224 Posel, D. “History as Confession: The Case of the South African Truth and Reconciliation Commission” in Attwood, Chakrabarty and Lomnitz, op cit, at 126225 Osiel, op cit, at 22 - 23226 Orford, op cit, at 856227 Barkan, op cit, at 345

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There are various examples globally of the judicial-historical endeavour delivering national legitimacy

in the context of collective memory of war crimes and other human rights abuses.228 In the report of

the Commission for Reception, Truth and Reconciliation for Timor-Leste (the CAVR), the report’s

authors address the question “Why, then, when Timor-Leste is focused on the future, is a Report

being presented that deals with the past?”229 as follows:

History telling that acknowledges complexity, that makes space for the voice of those often

silenced, and that opens the way for open-minded reflection can make a contribution to

building a nation where the idea of strength is based on respect for others, pluralism and

democracy based upon the equality of all citizens.230

Similarly, the report of the Chilean National Commission on Truth and Reconciliation acknowledges

that whilst historical facts may be differently interpreted, “[t]he unity of a nation ... largely depends on

a shared memory.”231 In Canada, the judicial-historical endeavour as an imperative for national

identity and legitimacy was identified in the Report of the Royal Commission on Aboriginal Peoples,

wherein the Commissioners argued “[w]e simply cannot understand the depth of these issues

[between Aboriginal peoples, the Canadian government and Canadian society as a whole] or make

sense of the current debate without a solid grasp of the shared history of Aboriginal and non-

Aboriginal people on this continent.”232 Such statements are consistent with Barkan’s argument that

“being part of liberal society”233 demands a “conceding the validity of others’ narrative histories.”234

In Australia, Goodall has described the role of legal proceedings in the interpretation given to national

histories as being “a testing place for both the new politics and the new interpretations of the past.”235

Osiel specifically acknowledges the development of native title claims in Australia as an instance

where “formations and transformations of collective memory are legally induced.”236 This role was

foreseen in the second reading speech for the Native Title Act, in which then Prime Minister Keating

acknowledged:

no self-respecting democracy would deny its history. To deny these facts would be to deny

part of ourselves as Australians. This is not guilt: it is recognizing the truth ... about the past

and, equally, the truth about our contemporary reality.237

228 Osiel, op cit, at 229229 CAVR, op cit, at Part 3 page 5230 Ibid, at 5 - 6231 Report of the Chilean National Commission on Truth and Reconciliation (1993), quoted in Orford, op cit, at 855232 Royal Commission on Aboriginal Peoples, Indian and Northern Affairs, Looking Forward Looking Back, Report of the Royal Commission on Aboriginal Peoples, Indian and Northern Affairs, Canada, October 1996http://www.collectionscanada.qc.ca/webarchives/20071211050944/http://www.ainc-inac.qc.ca/ch/rcap/sq/sq4 e.html#19Volume 1, Chapter 3 (accessed 24 August 2017)233 Barkan, op cit, at 315234 Ibid, at 323235 Goodall, H. “The Whole Truth and Nothing But ...’Some Interactions of Western Law, Aboriginal History and Community Memory” in Attwood, B. and J. Arnold (eds) Power, Knowledge and Aborigines, La Trobe University Press, Bundoora, 1992 at 106236 Osiel, op cit, at 5237 The Hon Paul Keating, MP, House of Representatives Hansard, 16 November 1993, at 2877

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Similarly, Bennett describes efforts to resolve the “uncertainty about what to accept as the truth about

Australia’s past treatment of its Aboriginal people” as contributing to “the enhancement of racial trust

in Australia.”238

4. Knowledge preservationThe judicial-historical endeavour can also be considered to have a pedagogical purpose.239 It places

the Court in a position of privilege to preserve conflicting accounts of recent history and memory,240

but has also served to develop history generally and in particular to focus on areas of history where

there had previously been a paucity of knowledge.

Numerous instances of the value of the judicial-historical endeavour for the preservation of historical

knowledge have been acknowledged, both by participants and subsequent commentators. The

Nuremburg war crimes trials, for example, were described by prosecutor Robert Kempner, as “the

greatest history seminar ever held in the history of the world.”241 Esteemed historian Alan Bullock

described these trials as “an absolutely unqualified wonder” from the point of view of the historian.242

Indeed, the charter for the establishment of the International Military Tribunal to hear these trials

avowed the desire of to “make available for all mankind to study in future years an authentic record of

Nazi crimes and criminality.”243 Similar benefits of preserving knowledge for the benefit of future

generations have been attributed to the affidavits of the professional historians supplied for the

purposes of the Auschwitz trials in 1964.244

However, any judicial purpose of knowledge preservation in war crimes has not been without its

detractors. The value of the Adolf Eichmann trial as a chronicle of history has been the subject of

debate, with Arendt insisting the stated aims of the State and the prosecution to put the history of

Anti-Semitism at the centre of the trial “was bad history and cheap rhetoric; worse, it was clearly at

cross-purposes with putting Eichmann on trial.”245 This is a claim refuted by Douglas, who argues

“(t)he question is not whether the trial can serve the interests of history and memory, but how it can

do so responsibly.”246 Douglas credits the streamlined rules of evidence which permitted hearsay and

“a more capacious notion of relevance” at the Nuremberg trials and the Eichmann trial with

overcoming the difference in epistemological conventions of the Court and the historian. These

permitted a more fluid, narrative form of testimonies which were designed to “provide a less restrictive

conduit for history and memory.”247

238 Bennett, D. “The Cubillo and Gunner Cases” [November 2000] Quadrant 35 at 35239 Osiel, op cit, at 2240 Ibid, at 41241 Quoted in Evans, R.J. “History, Memory and the Law: The Historian as Expert Witness” (October 2002), 41(3) History and Theory 326 at 331 - 332242 Quoted in de Graaff, B. “The Difference between Legal Proof and Historical Evidence. The Trial of Slobodan Milosevic and the Case of Srebrenica" (2006) 14(4) European Review 499 at 500243 Quoted in Osiel, op cit, at 81244 Evans (Oct., 2002), op cit, at 342245 Arendt, H. Eichmann in Jerusalem - A Report on the Banality of Evil, Penguin Classics, New York, 2006 at 19246 Douglas, L. “The Didactic Trial: Filtering History and Memory into the Courtroom” (2006) 14(4) European Review 513 at 514247 Ibid, at 516

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Similar debates arose in relation to the International Criminal Tribunal for the former Yugoslavia

(ICTY). De Graaf argues that the historical record established by the ICTY was unsatisfactory from

the viewpoint of a professional historian. This was particularly as expert witnesses were restrained

from drawing conclusions, this being a matter for the judges whose proceedings tend to impose a

coherence on fragmentary testimony.248 In contrast, Wilson states that the ICTY’s approach compels

a reconsideration of the view that the justice process and history writing are inherently

irreconcilable.249 Wilson argues the ICTY approached its work with a “novel combination of forensic

evidence and historical narrative,” and placed textual interpretation at the centre of its judgment in the

trial of Dusko Tadic, including by placing a heavy emphasis on expert oral evidence which “was more

an extended lecture on regional history than court testimony.”250

The preservation of knowledge by the judicial-historical endeavour may also provide the foundation

for the future interrogation of the historical record. For example, whilst the Timor-Leste CAVR report is

said to be a “unique and ... rich resource for further research, writing and education,”251 its writers

acknowledge the limitations of the report as a definitive historical account.252 However, the chair of the

CAVR expressed a hope that “based on the evidence it has collected and the uncovering of new

information through further research, the process of truth-seeking can continue.”253

A further perspective in relation to the preservation of historical knowledge is in relation to preserving

the stage for ongoing historical debate. An example of this is the defamation action brought by David

Irving against Penguin Books and Deborah Lipstadt.254 Participants in that trial have commented on

the importance of its outcome for knowledge preservation. Lipstadt, described her motivation in

defending the claim being that if libel was proven, “Irving could then claim that his definition of the

Holocaust had been determined to be legitimate.” 255 Evans, an expert witness called by the defense

in that matter, similarly considered the value of the verdict in the trial in preserving open debate

among historians.256

The benefit of knowledge preservation through the indigenous land adjudication processes has also

been acknowledged widely. Belgrave describes the reports of the Waitangi Tribunal as having the

status of being “authoritative, if not binding, and carry the imperator of absolute truth,” although

Belgrave does concede such reports have the weaknesses of reliance on the current state of

historical research and reflect the authors’ abilities and concerns.257 The Federal Court in Australian

native title matters has been described as being “in the unique and somewhat paradoxical position of

being the creator of official knowledge both in terms of native title legal outcomes and also an upsurge

248 de Graaf, op cit, at 500, 501 and 507249 Wilson, R.A. “Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia” (August 2005) 27(3) Human Rights Quarterly 908 at 922250 Ibid, at 926 and 928, quoting expert witness Robert Donia251 CAVR, op cit252 Ibid, at Part 3 page 5-6253 Ibid, at Preface by CAVR chair Aniceto Gutteres Lopes254 Irving v Penguin Books Ltd, [2000] All ER (D) 523; see also Lipstadt, D.E. History on Trial - My Day in Court with David Irving, Harper Collins, New York, 2005; Evans, R.J. Lying About Hitler- History, Holocaust and the David Irving Trial, Basic Books, New York, 2002255 Lipstadt, op cit, at 31256 Evans (Oct., 2002), op cit, at 341257 Belgrave, M. “Looking Forward - Historians and the Waitangi Tribunal” (2006) 40(2) New Zealand Journal of History 230 at 246

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of historical research and the collection of memories.”258 In this regard, North J in Nangkiriny v State

of Western Australia259 acknowledged that ‘'[t]he evidence given in this case is preserved for history in

the transcripts of proceedings. In time it will contribute to creating an understanding which would not

have existed without this case.”260

Skyring describes the advent of native title trials as providing “an opportunity for research in new

areas and from a unique perspective, bringing to life stories from long-untouched archival records.”261

Such histories “topple enduring myths about our past and present” through the “collation and

discovery of archival records and sources of information that may not have seen the light of day if

native title researchers were not searching for them.”262 Native title has therefore given Aboriginal

people both a motivation and a means to examine their own history - a result of which is, according to

Choo “[t]he excuse that Aboriginal people are invisible in the archival records is no longer tenable.”263 264

5. Public confidenceIn light of the issues considered in relation to knowledge preservation, the importance of the Court not

producing an erroneous finding on such matters is plain. As Williams argues:

Courts are more than the mere chroniclers of historical events; they also provide authorised

accounts of history. History is transformed when it becomes part of judicial deliberation.

Courts pass judgment on history and in so doing radically change history... History, like other

evidence, becomes a fact and, within the legal context, a fact that is rigid.26A

This is relevant to public confidence in the legal system, in that “it is that much more embarrassing for

judges - and threatening to the law’s legitimacy - when judicial decisions embodying historical

interpretations fail to stand the “test of time.”265 This is because once an interpretation of history is

employed for the purposes of a judicial determination, “history becomes as fixed and unchangeable

(or not) as is the law itself.”266 Selway notes a real example of this, in the Full Federal Court’s

determination in Anderson v Wilson267 (Anderson) with reference to the High Court’s findings in Wik,

258 Curthoys, Genovese and Reilly, op cit, at 227259 [2002] FCA 660260 Ibid, at [17], Other examples of this have been identified by Curthoys, Genovese and Reilly, op cit, at 211, in the judgments of Merkel J in Shaw v H/o/f [1998] FCA 389 (in relation to whether each of the respondents were an "Aboriginal Person" who could stand for election under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)), and Von Doussa J in Chapman v Luminis Pty Ltd (No 4) [2000] FCA 1121 (litigation in relation to claims of Aboriginal cultural heritage impacting upon the development of the Hindmarsh Island Bridge)261 Skyring, F. “Setting the Record Straight: Writing history for native title claims,” in Bauman and Click, op cit, at 338262 Ibid, at 344 and 345263 Choo, C. “Historians and native title: the question of evidence” in Kirkby and Coleborne, op cit, at 274 - 275. For examples of the preservation of historical expert evidence from Australian native title cases, see Owen, C. It’s Still in My Heart, This is My Country: The Single Noongar Claim History, UWA Publishing, 2009 (in relation to Bennell v State of Western Australia [2006] FCA 1243) and Cane, S. Pila Nguru: The Spinifex People, Fremantle Arts Centre Press, 2002 (in relation to Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717).264 Williams, J. quoted in Selway, op cit, at 139265 Osiel, op cit, at 219266 Selway, op cit, at 153267 [2000] FCA 394

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in that “[w]hether the history was right, wrong or indifferent, it had formed part of the legal reasoning of

the High Court and, to that extent, had become binding.”268

Similarly the Canadian case of Delgamuukw v British Columbia269 (Delgamuukw) has been said to be

able to be “read as forms of history."270 271 Such comments go to the imperative that the judicial-historical

endeavour can withstand public criticism. In this respect, a solid historical platform to underpin the law

can also serve to mitigate against diminishment of public confidence in the legal process. Says

Walters:

If a modem judge were to say that the common law did recognize Aboriginal customs without

offering any historical justification for that assertion, then it might be argued that the judge

was simply concealing a political decision about modern rights behind a distorted view of the

imperial and colonial past.27''

6. Conclusion to Chapter 3This Chapter considered the “judicial-historical endeavour” imperatives for reform of how historically-

sourced evidence is interpreted generally, and specifically in relation to native title claims in Australia,

with reference to common themes identified throughout the international and Australian literature on

remedial justice for indigenous peoples. Such motivations are central to the need to develop

transparent, consistent and fair Inference Guidelines for the assessment of claimant oral evidence,

expert evidence and archival material. Research Question 1 asks what issues are raised in the

literature on remedial justice for indigenous people which give rise to the inference imperative in

native title. As is made clear in this Chapter, these include issues such as the right to know and the

right to transmit histories under international law obligations, aspirations to enhance national

reconciliation endeavours through transparent and fair historical record keeping, implications of

pluralist and democratic approaches to recording the past for national identity and legitimacy,

pedagogical benefits as well as the elevated scrutiny applicable to judicial decisions where evidentiary

material becomes the subject of published works, and the imperative to have a robust methodology to

judge competing evidence for themaintenance of public confidence. Whilst these matters might be

subsidiary to the primary indigenous aspirations of rights to land, they remain at least incidental in

many ways to the evidentiary path to fulfilling that.

268 As observed by Selway, op cit, at 152; See also State of Western Australia v the Commonwealth [1995] HCA 47 at paragraphs 1 and 9 per Dawson J; Contrast the comments of Callinan J in State of Western Australia v Ward [2002] HCA 28 at fn 816.269 (1993) 104 DLR (4th) 470270 Curthoys, Genovese and Reilly, op cit, at 109271 Walters in Kirkby and Coleborne, op cit, at 127

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Chapter 4 - Historiographic and epistemological controversies

Overview of Chapter 4This purpose of this Chapter is to analyse the challenges for the inference imperative in native title

addressed through the “History Wars” and associated debates. In recent times the historiographic and

epistemic commentary in Australia on matters relevant to evidence in native title claims has been

widespread. Part 1 of this Chapter sets out the background to these debates. Parts 2 and 3 then

analyse the focus of the relevant literature on challenges posed by the statute and case law

pronouncements on what constitutes native title, and how it is to be proven respectively. These

problems are well summarised in the following quote from an anonymous Federal Court judge:

Native title is a terrible area for legal disputation, and an inappropriate matter for judicial

determination. Events have occurred so far back that it is absurd: in general, courts do not

allow cases to be brought on six years after the material events, and in these cases courts

have conduct of events that happened in the nineteenth century, about a particular plot of

land in 1829.272

Part 4 then considers the further complications suggested in the literature of a lack of coherence

between the functions of the Court and the methods and outputs of experts in the humanities and

social science arenas. Such a lack of coherence is consistent with Gummow J’s assertion of a lacuna

in taxonomy referred to in the Introduction, namely few established ground rules for dealing with

archival evidence and its interpretation and presentation in Court.273

The existence of gaps and silences in the documentary record due to the constrained focus and

limited reference material of the authors, cultural attitudes and general disinterest amongst the

chroniclers of the relevant eras is the subject of Part 5. This part is directed at analysing the greater

need for reference to context in interpreting archival material.

Part 6 addresses the issues raised in the debates regarding contamination of the archive by the

“settler history” nature of the perspectives and motivations of the author, and analyses the need for

consciousness of “genre” when considering these writings.

Parts 7 and 8 consider issues which extend beyond the Australian colonial archive, of potentially

erroneous conclusions of contemporary interpretations, reliability of historical sources as “objective

truth,” as well as advocacy, bias and politics amongst expert witnesses and the material they rely

upon. Parts 9 and 10 then analyse matters of process, namely the multiple filters across the entire

inferential process of native title determinations (and therefore multiple sources of inference), and a

272 Quoted in Curthoys, Genovese and Reilly, op cit, at 61273 Ibid, at 11

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potential uneasiness with the adversarial process both for social science experts and claimants

themselves.

The History Wars covered many aspects of Australian history that are not relevant to the focus of this

work. This Chapter seeks to analyse only those aspects that are directly relevant to the research

questions (particularly for the purposes of synthesising these issues with the approaches taken in the

case law) and to avoid those aspects that are not, or are only tangentially, relevant. As is apparent

from the Inference Guidelines, analysis of these issues is crucial to properly identify and represent

considerations of archival challenges and issues for expert witnesses, and to an extent a number of

the other aspects identified therein.

1. The "History Wars"It is probably no coincidence that an upsurge in interest amongst professional historians in matters

relevant to Aboriginal history in Australia predicated and accompanied developments in Aboriginal

land and native title law in this country. For generations prior, the Australian academic landscape was

characterised by disinterest or mere peripheral reference in Aboriginal and Torres Strait Islanders.

This began to change in the 1970s, with the emergence of historical research and writing on

indigenous history, and pertinently, history as it relates to rights and interests in land and waters. As

stated by Ritter:

By 1971, anthropologists had documented the subtlety and complexity of Aboriginal society

and land tenure. Australian historiography was undergoing a paradigm shift towards including

Aboriginal and other previously marginalized historical experiences within its ambit.274

This emergence had two, interrelated, consequences. The first was the increased availability of expert

opinion that could be made available to the Courts in the development of native title jurisprudence. In

this regard, much has been written on the influence of such expert opinion of historians on the Mabo

decision. Broome credits Australian historians with having contributed to the “climate of opinion in

which the High Court found terra nullius untenable.”275 Similarly Ritter claims that “[bjoth Mabo and

Wik were won with the assistance of revisionary historiography that undermined prevailing judicial

wisdom.”276 For example, the role of Henry Reynolds’ work in the outcome of the Mabo and tV/7c

decisions in particular has been the subject of considerable discussion and debate.277

274 Ritter, D. “The “Rejection of Terra Nullius” in Mabo: A Critical Analysis” (1996) 18(5) Sydney Law Review 5 at 15275 Broome, R. “Historians, Aborigines and Australia: writing the national past,” in Attwood (1996), op cit, at 55 and 71276 Ritter (1996), op cit, at 6; Moses in Manne (2003), op cit, at 351277 Manne, R. “Introduction,” in Manne, R. Whitewash - On Keith Windschuttle’s Fabrication of Aboriginal History, Black Inc. Agenda, Melbourne, 2003 at 3; MacIntyre, S. and A. Clark, The History Wars, Melbourne University Press, Carleton, 2003 at 126; Hunter, R. "Aboriginal histories, Australian histories, and the law,” in Attwood (1996), op cit, at 12; Connor, M. The Invention of Terra Nullius - Historical and Legal Fictions on the Foundation of Australia, Macleay Press, Sydney, 2005 at 218 and 220; Selway, op cit, at 151; Van Krieken (2006), op cit, at 582 - 583; Attwood, B. Possession - Batman’s Treaty and the Matter of History, Miegunyah Press, Carlton 2009 at 297; Attwood, B. "The Law of the Land or the Law of the Land' - History, Law and Narrative in a Settler Society” (2004) 2 History Compass 1 at 16; Behrendt, L. "Forward,” in Curthoys, Genovese and Reilly, op cit, at xii; Hope, op cit; Reynolds, H. Why Weren’t We Told? A Personal Search for the Truth About our History, Viking, Ringwood, 1999 at 202. The influence of Reynolds work on the High Court in Wik v State of Queensland was summarised by Beaumont J in Anderson v Wilson [2000] FCA 394 at [290].

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The second was a self-perpetuating debate amongst historians and historical writers in relation to

such matters. Coined “the History Wars,” this debate has been the subject of a vast range of literature

and comment, in academic papers, books and media articles. The controversies focused on the

extent to which violence was intentionally perpetrated against Aboriginal peoples through the course

of colonisation and expansion of white occupation of the frontier, and the extent to which this was

endorsed and promoted by those in positions of authority. Concepts such as massacres, warfare,

guerilla tactics and genocide are debated in the context of attribution of guilt and questioning the

legitimacy of those involved. Alongside this, the controversies also raged around the nature of

traditional Aboriginal society and its ability to adapt and “progress.”

The debates extended directly into the veracity of matters the subject of native title claims, as well as

other litigated matters and matters the subject of judicial and semi-judicial inquiry on Australia, chief

amongst which was the “Stolen Generation” or forcible removal of Aboriginal and Torres Strait

Islander children to government and church institutions.

Key players who engaged directly in the debate were generally academic historians, and to a smaller

extent anthropologists and political scientists.278 However, less prominent but nonetheless important

contributions relevant to native title issues came from various social science and humanities experts

who have given evidence before the Courts, as well as lawyers and judges involved in the native title

process, legal academics and native title claimants and indigenous commentators themselves.

The contribution of these people is analysed further in the remainder of this Chapter. These writings

have been chosen for consideration because they are directly relevant to debates around native title

in Australia (and to some extent similar debates in New Zealand) and, ultimately, matters for

reference in the development of Inference Guidelines. Any embarkation into the more theoretical

aspects of the historiography involved is beyond the scope of this thesis, and for this reason

consideration does not extend to the works of pure historiographers or a consideration of the

controversies amongst the different schools of thought, for example the positivist, rationalist, relativist,

post-modernist and post-colonialist traditions. For the sake of completeness though, it is

acknowledged that such writers remain influential upon many of the concepts considered in the

debates considered here, and the works of Carr,279 Evans,280 Novick,281 and Said282 in particular are

frequently referenced in the literature that is analysed below.

2. Native Title by definitionConsistent with commentary set out in the ALRC Connection Report, many writers in the History Wars

and associated epistemological debates have been critical of the “height of the bar” faced by native

title claimants, by virtue of the requirements of the Native Title Act and its interpretation by the Courts.

278 Key players in the debates included Henry Reynolds, Robert Manne, Bain Attwood, Lyndall Ryan and Stuart MacIntyre on one side of the historiographic fence (to varying extents), and Keith Windschuttle and Geoffrey Blainey on the other.279 Carr, E.H. What is History?, Vintage Books, New York, 1961280 Evans, R. J. In Defense of History, Norton, New York, 2000281 Novick, P. That Noble Dream - The “Objectivity Question” and the American Historical Profession, Cambridge University Press, New York, 1998282 Said, E.W. Orientalism, Penguin Books, London, 2003

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These requirements have been said to have created an unduly onerous evidentiary burden for native

title claimants, which Edgeworth argues has “dramatically reduced the potential for native title to

become a ‘vehicle for change and empowerment’.”283

Bartlett has itemised the difficulties posed by s 223 of the Native Title Act and its interpretation and

application as being:

• The requirement to particularise traditional laws and custom.

• The precondition to ongoing societal existence to have maintained traditional laws and

customs.

• The requirement for continued acknowledgement and observance of such laws and customs.

• Rejection of the concept that abandonment must be voluntary.284

Similar to the analyses in the various ALRC publications, much of the criticisms trace their

foundations back to the importation of the concept of “traditional.” The word “traditional” is criticised by

Young as being “a somewhat nebulous term, with a limited legal pedigree” which has the restrictive

effect of tying Indigenous people’s rights to their history and religion.285

There are various ramification associated with these issues. First, the requirement that laws and

customs be traditional imports a need for historical evidence that is onerous for a culture that did not

have written records dating back to sovereignty, a fact which makes it an “absurd and unjust” demand

according to Kirby.286 The challenge of this is further enhanced in that maintenance of connection

requires proof of a negative factual proposition that such connection at no time ceased in the period

since sovereignty. As Keon-Cohen and Seidel argue, “[t]he supreme difficulty, if not impossibility, of

proving such matters in a court of law subject to the rules of evidence is obvious.”287

The need to prove a negative factual proposition is also criticised by Rose, in that it “puts ... historical

scholarship, at a disadvantage” because of the “destabilizing” or “deconstruction” tactic used for

“eliminating evidence and thus leaving the default position intact.”288 The effect of this is that native

title claimants have the unenviable task of using a “grotesquely imperfect”289 historical record to prove

maintenance of connection to the claim area, where such imperfections may lend themselves more

fully to respondent submissions which throw doubt over such continuity.

Secondly, the importance of historical evidence by virtue of how native title is defined engenders the

complexities that are set out below in relation to context and genre. In this sense, Attwood is critical of

s 223, in that it “necessitates the production of ethnographies and histories to support such a past

even though these might be contradicted by empirical ethnographical and historical records which tell

283 Edgeworth, B. “The Mabo ‘Vibe’ and its Many Resonances in Australian Property Law” in Brennan, S., M. Davis, B. Edgeworth and L. Terrill (eds), Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? The Federation Press, Sydney, 2015 at 91284 Bartlett (2015), op cit, at 152285 Young, S. “The Trouble with Tradition’: Native Title and the Yorta Yorta Decision” [May 2001] 30 Western Australian Law Review 28 at 37 and 49286 Kirby, M. “Alex Castles, Australian Legal History and the Courts” (2005) 9^) Australian Journal of Legal History 17 at 12287 Keon-Cohen, B and P Seidel, "The Yorta Yorta Native Title Claim: Litigation, negotiation, and partial settlement 1994 - 2012 & continuing,” in Bauman and Glick, op cit, at 248 - 249288 Rose, D.B. “Reflections on the Use of Historical Evidence in the Yorta Yorta Case" in Paul and Gray, op cit, at 46289 Walker, B. “The Legal Shortcomings of Native Title,” in Brennan, Davis, Edgeworth and Terrill, op cit, at 21

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a story of discontinuity and dispossession,”290 a difficulty that Attwood acknowledges is not

quarantined to actions under the Native Title Act, as it was also apparent in the judgment in

Milirrpum.29'1 Accordingly, even if claimants can clear the hurdle of being able to articulate their own

history,292 they will then need to counter the disparities of the broader archive. It is in this sense that

Ritter argues native title claimants need to “win the historiography” if they are to succeed in their

claims.293 To do so, claimants will need to convince the Courts to have serious regard to the

theoretical underpinnings of history294 referred to in the following parts of this Chapter.

Thirdly, the onerous nature of these requirements is said to be at odds with principles of non

discrimination, clear and plain intention and beneficial construction, which Strelein argues are

applicable to statutory interpretation as it relates to Indigenous peoples’ rights.295

Much of the criticism of s 223 amongst the historiographic debates inevitably finds its way to a critique

of the interpretation afforded the section by Olney J in Yorta Yorta and appeal Courts in that matter.

Case argues Olney J’s judgment constituted a departure from previous precedent, particularly from

the judgment of Toohey J in Mabo given Olney J’s narrowing of Toohey J’s use of the term

“occupation” and Olney J’s subordination of the claimants’ oral evidence, which had the effect of

setting an impossible task for proof of traditional law and custom and maintenance of connection.296

Strelein argues that in Yorta Yorta HC the High Court went on to expand the concept of traditional, by

adding the further requirements that rights and interests be sourced to pre-sovereignty normative

rules, and a requirement that such normative system have a continuous existence and vitality since

sovereignty (having regard to the present tense of the s 223 definition).297

Subsequent native title determinations have also come in for criticism in relation to the treatment of

the definitional issues. Bartlett is critical of the imposition of the requirement to particularise the

elements of traditional law and custom and of rights and interests in relation to land or waters under

them by the High Court in State of Western Australia v Ward298 (Ward HC) and as taken up by

O’Loughlin J in De Rose v South Australia299 (De Rose). He describes these as “a significant barrier

to the establishment of native title”300 and having relegated Australian law to the status of “colonial

dispossessor and of the curator in the museum.”301

Young argues that the Courts have cultivated two “excesses” in the requirements to make out the

ongoing existence of native title, namely “over-specificity in the definition of the interest by reference

to traditional law and custom” and “over-particularity in the application of the requirement that there

290 Attwood in Attwood (1996), op cit, at xxxvii291 Attwood, B. Rights for Aborigines, Allen & Unwin, Crows Nest, 2003 at 306292 Curthoys, A. and A. Genovese “Evidence and Narrative: History and Law” in McCalman, and McGrath, op cit, at 83293 Ritter, D. “No Title Without History,” in Paul and Gray, op cit, at 81294 Reilly and Genovese, op cit, at 42295 Strelein (2009a), op cit, at 115; Strelein, L. “A Captive of Statute” (2009b) 93 Reform (Native Title) 48 at 50 and 51296 Case, N. “Tide of History or Tsunami? The Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors" (1999) 4(17) Indigenous Law Bulletin 17 at 18297 Strelein (2009a) at 77; See also Ritter, in Paul and Gray, op cit, at 91298 (2002) 191 ALR 1; [2002] HCA 28299 [2002] FCA 1342300 Bartlett, R. “Humpies not houses, or, the denial of native title: a comparative assessment of Australia’s museum mentality,” (2003) 10 Australian Property Law Journal 1 at 7 and 8301 Ibid, at 24

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must be some constancy and continuity in ‘traditional law and custom’ for the interest to survive.”302

Young cites the judgment of Nicholson J in Daniel v State of Western Australia303 (Daniel) as an

example of the effects of such over-particularity of proof, in that His Honour adopted a “microscoped

elimination process” regarding claimed rights that were not supported by evidence of specific

historical and specific contemporary practices.304

Importantly for the subject matter of this thesis, Behrendt, Cunneen and Libesman accuse the High

Court in Yorta Yorta HC of failing to “establish guidelines which take into account the onerous

requirements placed on claimants,” which has perpetuated a difficulty which continues to be evident in

later Federal Court decisions.305 Such a difficulty is relevantly described by Carter as follows:

The current interpretation of s 223(1), requiring the proof of laws and customs at the time of

sovereignty, means that the inferential leaps necessary for a successful claim will be larger

than those required in conventional cases.306

3. Rules of evidence and standard of proofVarious authors have been critical of both the 1998 amendments to the Native Title Act which made

the rules of evidence applicable in native title claims, and the lack of judicial appetite to exercise a

dispensation with such rules. Ritter and Burton note that whilst Courts have been active in

acknowledging the evidentiary difficulties faced by native title claimants in relation to historical

matters, such acknowledgements have not translated to “some latitude in the application of s

82(1 ).”307 Osiel criticises this approach:

To insist on punctilious judicial adherence to any notion of legal formalism at such times is to

guarantee the failure of courts to cultivate liberal memory when this objective is vital to

successful democratisation.... By simply applying ‘the rules laid down' without extended

discussion and defence of the principles on which they rest, formalist approaches to judicial

process shut off the very discussions that is most needed.308

Stuckey similarly notes a lack of congruence between the evidentiary rules of the social scientist and

the legal system, in that the legal system would exclude narratives constructed from verbal and

written accounts under the hearsay evidence rules.309 However, beyond these sentiments, there is

little justification in the literature for the suggestion that the application of the rules of evidence

disadvantages native title claimants, particularly given the various exceptions to rules which allow oral

302 Young, S. The Trouble with Tradition - Native Title and Cultural Change, Federation Press, Annandale, 2008 at 4303 [2003] FCA 666304 Young (2008), op cit, at 234 and 235; See also Ciolek M. “Exploring Connection: Judicial Interpretation of Section 223(1 )(b) of the Native Title Act 1993 (Cth)” (2006) 10 Australian Indigenous Law Reporter 14 at 24305 Behrendt, L. C Cunneen and T. Libesman, Indigenous Legal Relations in Australia, Oxford University Press, Melbourne, 2009 at 203. De Rose v State of South Australia [2002] FCA 1342 is specifically cited by those authors in this regard. See also Strelein (2009a), op cit, at 149306 Carter, op cit307 Ritter, D. and T. Burton “Native Title Claims Before the Court: Proof and Evidence” in Neate, G. (ed) Native Title, LexisNexis-Butterworths, Chatswood, 2000 at 946.15 - 946.16, with reference to Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at paragraph 388308 Osiel, op cit, at 298309 Stuckey, M. “Not by Discovery but by Conquest: The Use of History and the Meaning of ‘Justice’ in Australian Native Title Cases,” (2005) 34 Comm. L. World. Rev. 19 at 26

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and expert evidence as mentioned in Chapter 1. Indeed, some commentators have suggested it is not

clear that the amendments to apply the rules of evidence have had any significant effect.310

What is more controversial is the extent to which the relevant standards of proof demanded by a

Court, and those accepted by anthropologists, historians and other experts in native title claims, are

reconcilable. Conflicting standards of proof feature heavily amongst the controversies of the History

Wars, with various authors suggesting that the standards of proof adopted in the Courtroom are much

higher than those used in the social sciences and humanities.311 However, other authors have been

more willing to concede an equivalence between these standards, to the extent that Evans felt

satisfied as an expert witness in the defamation proceedings brought by David Irving against Deborah

Lipstadt, in that “(t)he outcome rested not on proof of guilt beyond reasonable doubt but - as in

history - the establishment of a case on the balance of probabilities.”312

Bruce, who has been an expert witness in native title matters, similarly argues there are similarities

between the judicial process and the standards adopted by social scientists, in that “(i)n none of these

disciplines can we be absolutely certain about the truth of a matter, but there are modes of

interpretation that lead us to the next best thing.” Litchfield favours a mode aligned with hermeneutics,

a historiographic approach grounded in the application of interpretative techniques (built on common

sense) to historical evidence, with particular reference to understanding the past in light of present

experience. This is underpinned by a sense that knowledge is always partial. That author attributes

the judgments of Brennan J in Mabo and Gummow J in Wik as having adopted this mode,313 in

contrast to Blackburn J’s judgment in Milirrpum and Olney J’s judgment in Yorta Yorta, which he

alleges both sought out absolute and objective facts from the historical evidence.314

Other writers have found a continuity between the respective approaches of the law and the

humanities/social sciences. In the social sciences, Shaw describes the relevant mode as inductive

reasoning or the phenomenological approach, “where a number of observable facts are brought

together to give a comparatively rounded overview of the whole proceedings.”315 In legal proceedings,

the mode adopted is one of “inference following a pattern of syllogistic argument and cross-

referencing.”316 This is discussed further in Chapter 6 in relation to theories of inference. Shaw argues

310 Curthoys, Genovese and Reilly, op cit, at 79311 See for example the debates amongst Windschuttle and Attwood in relation to frontier massacres, in Attwood, B. Telling the Truth About Aboriginal History, Allen & Unwin, Crows Nest, 2005 at 36, 46 - 47, 74, 119, 182 and 187; Ryan, L. “Waterloo Creek, northern New South Wales, 1838” in Attwood and Foster, op cit, at 35; Mulvaney, D.J. "Barrow Creek, northern Australia, 1874,” in Attwood and Foster, op cit, at 44; Manne, R. Left Right Left - Political Essays 1977 - 2005, Black Inc, Melbourne, 2005,, at 320; Attwood in Attwood (1996), op cit, at xxxviii; and Choo and Hollbach (1998/1999), op cit, at 8312 Evans (Oct., 2002), op cit, at 340. Contrast Evans’ view regarding how historians’ standards compared to the criminal standard of proof, at 338313 Litchfield, J. “Mabo and Yorta Yorta: Two Approaches to History and Some Implications for the Mediation of Native Title Issues” (2001) 3 National Native Title Tribunal Occasional Papers Series at 5 - 6, 8 and 10. Brennan J did so, according to Litchfield, by reference to “aspirations to universal values and (human) rights” to conduct “a hermeneutic process by skillfully conducting a conversation between the common law, a broad range of historical events, and contemporary values.” - Ibid, at 10; Attwood in Attwood (1996), op cit, at xvii314 Litchfield, op cit, at 4 and 6, with reference to Milirrpum v Nabalco (1971) 17 FLR 141315 Shaw, B. "Bringing the numinous into the witness stand” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 8 and 13316 Ibid, at 6 - 10; with reference to Ligertwood and Edmond, op cit

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these modes have much the same features because “we cannot do more than approximate the ideal

because this is an uncertain world.”317

But an acceptance that the social sciences and humanities on the one hand, and the Courts in their

civil jurisdiction on the other, may have similar approaches to standards of proof, is not the end of this

matter for the relevant controversies. The principle that the balance of probabilities is applied as a

sliding scale318 raises two separate issues in the relevant historiographic material. Firstly, the gravity

for the claim group of a finding of loss of connection is severe - not only in relation to a finding that

native title does not exist (and the loss of future economic and cultural benefits associated with this),

but also in relation to matters of identity and personal responsibility. As Reilly argues, given a native

title determination may hold “that a community is not who they claim to be, or their laws and customs

are not of a traditional nature,” the sliding scale applied should be carefully applied.319 Further, a

native title determination is a finding in rem so the consequences extend beyond the claim group as

constituted or the claim as argued in the particular application, so weight afforded to evidence should

also be considered with that context in mind.320

Secondly, the sliding scale should be applied having regard to the difficulties of the evidentiary burden

and the nature of the evidence available. Curthoys and Genovese cite an example of this being

Merkel J’s judgment in Shaw v Wolf,32'' in which His Honour was willing to accord greater than usual

weight to community recognition and family oral histories told over generations, because of the

inadequacy of nineteenth century written records.322

A further matter for consideration in relation to proof of native title is the unusual status of fact-finding

in appeals in such matters. With particular reference to the De Rose v South Australia323 (De Rose

FC), Burke states the Full Federal Court indicated they were not disturbing a finding of fact but an

inference made from the facts. This is discussed further in Part 2 of Chapter 8. Fact-finding therefore

now seems to have become a shared responsibility between the trial judge and appeal courts due to

the “fundamental indeterminacies in the key concepts of the legal doctrine of native title. The effect of

this qualification is that, although appeals are meant to be restricted to questions of law only, appeals

in native title can reopen many issues.”324

4. Lack of coherence of functions and methodSimilar to the debates around the contrasting standards of proof amongst Courts and the

humanities/social sciences, is the suggestion that there is a lack of coherence in the functions and

methods of the Courts and academic historical enquiry in relation to the concept of facts and in

reaching positions of finality. For this reason, it has been suggested by a number of authors (both

317 Ibid, at 9; See also Shaw in Choo and Hollbach (2003), op cit, at 99318 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362319 Reilly (2000), op cit, at 467320 Wooten, H. “Conflicting Imperatives: Pursuing Truth in the Courts," in McCalman and McGrath, op cit, at 20321 [1998] FCA 389 at [116] - [118] and [125]322 Curthoys, Genovese and Reilly, op cit, at 212323 [2005] FCAFC 110324 Burke, P. Law’s Anthropology - From ethnography to expert testimony in native title, ANU E-Press, Canberra, 2011, at 237

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social scientists and former judicial officers) that any alignment between the work of the professional

historian or anthropologist (and other social scientists and humanities experts who may be called

upon to give evidence), and the purpose and approach of the Courts is an uneasy one.325

Judicial proceedings are constituted to make findings regarding substantive rights based on facts

rather than historical truth, and must resolve a dispute with an intended finality.326 The Court’s concern

with evidence of the past is in the context of the rights of a party being reliant on the occurrence of a

certain event or state of affairs.327 Social scientists, however, seek the truth but do not have to make

definitive findings - and can revisit findings after new evidence or a new interpretation comes to light.

Thus historians do not provide authority - everything can be contested and is contestable.328 The

former chair of the Waitangi Tribunal summarised the issue thus - “History is argument without end

and law is the end of argument.”329

The majority of commentators from the anthropological and historical disciplines tend to downplay the

concept of facts and the potential of ever reaching a final or certain position. Edmond puts this in the

context of other disciplines:

For, if natural scientists experience difficulty attaining the idealized standards conventionally

associated with the empiricist forum then it would be curious if the same standards were

attainable or applicable, without serious qualification, to other types of specialized knowledge

and expertise - especially those disciplines which study human society and culture employing

more interpretative, or hermeneutic, methods.330

The inferential process called for in the judicial system, particularly in relation to requirements for

experts to make clear and distinct statements of fact and separate opinions drawn therefrom, has

been argued by some to be at odds in relation to anthropological methods. Indeed, Palmer notes that

anthropological opinion as to the nature of the relevant society at the time of sovereignty is largely

speculative,331 as “an anthropology of social relations or meaning is complex and comprises many

strands of knowledge and interpretation,”332 and is determined with “reference to an epistemology that

may not readily separate ‘fact’ from ‘opinion’ or ‘interpretation’ from field data.”333 More expansively,

Palmer argues:

325 Perhaps the most famous of such suggestions is that of Rousso, in the course of objecting to being called as an expert witness in the Bordeaux Assizes Court trial of Maurice Papon - see Wilson, op cit, at 913326 Although it is conceded that the Native Title Act s 13 provides for applications to be made to vary or revoke an approved determination of native title where events have taken place since the determination was made that have caused the determination to no longer be correct, or if the interests of justice require the varation or revocation of the determination, and that various such applications have been made, including one successfully {Talka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40) and as at the date of this thesis, one application is on foot (Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia WAD215/217 filed 15 May 2017).327 Wooten in McCalman and McGrath, op cit, at 17 - 18 and 29328 Ibid, at 19, 29329 Durie, E, quoted in Williams, J. ‘Truth, Reconciliation and the Clash of Culture in the Waitangi Tribunal,” [2005] ANZLWE- Journal 234 at 236330 Edmond, G. “Thick Decisions: Expertise, Advocacy and Reasonableness in the Federal Court of Australia” (2004) 74 Oceania 190 at 210331 Palmer (2011), op cit, at 8332 Palmer (2007), op cit, at 10333 Palmer (2011), op cit, at 14

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Anthropologists develop ways of understanding social relationships, based upon that data

and their theoretical or paradigmatic assumptions which are part of the training of their

discipline. They do not simply present raw data or iterate the words of those with whom they

worked. There is a vital step between the presentation of the data and the articulation of its

interpretation. Such a step, characterised by the moulding of the material consistent with

theory or paradigm renders the opinion substantially different to the data.334

Similarly, Burke disavows the legal conception of a fact, in that it “tends to bypass the issues of the

linguistically mediated nature of most evidence.”335 Further, that author points to the satisfactory end

point in the social sciences and humanities, of “interpretative indeterminacy,” which means the ability

for more than one interpretation to be drawn from the same evidence.336 Alternative possibilities and

competing accounts are acceptable to practitioners in these disciplines.337 History is indeterminate,

and historical and anthropological interpretations and conclusions are always merely provisional and

will inevitably be subject to new perspectives and interpretations through later analyses.338

Courts, on the other hand, limit the totality of the evidence and construct “an interpretative finality.”339

In a Court, facts are evaluated according to the most plausible narrative of events,340 through adopting

“encapsulating generalisations and agreement to ‘commonsense’ observations.”341 The imperative to

do so is because such disputes “must be resolved no matter how evenly balanced the arguments are

for favouring one version of the past over another.”342 In doing so, the judge does not have a role of

resolving the professional debates of the humanities but rather applies legal interpretation and fact

construction to “produce the official (and authoritative) account - the judgment - [which] privileges

judicial perspectives.”343

The efficacy of native title determinations has been criticised in the literature as a consequence of

such lack of coherence. For example, Stuckey describes the joint judgment of Black CJ and Sackville

J in Anderson as “dispute resolution oriented, rather than truth oriented.”344 More broadly, Reilly and

Genovese argue “the promise of native title through the operation of the law suffers from the illusion

of a determinate past,” and that a “metahistory” of an entirely knowable past is distinctly captured in

native title jurisprudence.345 Again drawing on Gummow J’s "taxonomy” reference, Reilly argues:

One of the key dilemmas in establishing a taxonomy of principles for the use of history in law

is that, at the beginning of the 21st century, there is no settled version of history that the law

can unquestioningly draw upon.346

334 Palmer (2007), op cit, at 6335 Burke (2011), op cit, at 18336 Ibid, at 64337 Curthoys, Genovese and Reilly, op cit, at 16 -17338 Sherry, S. “The Indeterminacy of Historical Evidence” (1995-1996) 19 Harv. J.L. & Pub. Policy 437 at 441; Byrnes, G. “By Which Standards? History and the Waitangi Tribunal: A Reply” (2006) 40(2) New Zealand Journal of History 214 at 225; Attwood (2005), op cit, at 161; MacIntyre and Clark, op cit, at 13339 Burke (2011), op cit, at 94340 Reilly (2006), op cit, at 29341 Burke (2011), op cit, at 227342 Reilly (2006), op cit, at 32343 Edmond (2004), op cit, at 215 and 218344 Stuckey, op cit, at 30345 Reilly and Genovese, op cit, at 37346 Reilly (2006), op cit, at 42

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From the judges’ perspectives, there is a mixed reaction. Former Chief Justice Mason has

acknowledged that there “is no one ‘right’ view of Australian history.”347 However, former Justice Finn

has a more reserved approach to how the heated disputes in the social sciences may be subjected to

judicial adjudication:

In one native title appeal in which I participated, we were in effect being asked to decide

between critics and advocates of post-modern historiography. Needless to say, interesting

and venomous as that dispute may have been, we declined the invitation to make fools of

ourselves.348

Such is the potential for misalignment of purpose and method, that some commentators have been

moved to ask whether issues of redress arising from historical circumstance belong in the Courts or

are they more appropriately the domain of a political solution?349 However, Burke identifies a level of

symbiosis between the way the Courts adopt evidence from anthropologists, historians and others.

He identifies a number of ways in which the judicial process and social science interacts, including “in

an act of digestion, in which law converts anthropology into what it needs for its own functioning. Thus

anthropological knowledge is converted into a legal fact.”350 The other interaction is “collusion,”

whereby “judges look to science to share the burden of responsibility for difficult decisions.”351

Similarly, Morton acknowledges that whilst “[tjhere are substantial differences between anthropology

and the law ... there is common ground in relation to the use of reason and evidence in assessing

what is likely to be true or false” through reliance on acceptable standards of proof which

accommodate that findings need not be made based on absolute certainty.352

5. Context, gaps and silences in the documentary recordGaps and silences in an historical record of Aboriginal and Torres Strait Islander presence in Australia

are likely to be inevitable, as theirs was an oral culture that did not create literary sources. As

Curthoys, Genovese and Reilly argue “Australian legal history, as far as cases involving Indigenous

parties are concerned, is about absence, about what is not available.”353 This requires the Court to

create “an approximation of the past” through a process of inference from surviving material traces, of

which there are few and “no witnesses with memories of the events in question.”354 As a

consequence, if documentary evidence is required to establish matters relevant to proof of native title,

“then claims in all parts of Australia may face an insurmountable obstacle.”355

347 Mason, Sir Anthony, “Foreword” in MacIntyre and Clark, op cit, at viii348 Finn, P. “A Judge’s Reflection on Native Title” in Brennan, Davis, Edgeworth and Terrill, op cit, at 28349 Wooten, in McCalman and McGrath, op cit, at 33 - 34; Similarly Kirby (2005), op cit, at 13; Finn, op cit, at 242; Van Krieken, R. "Is Assimilation Justiciable? Lorna Cubillo and Peter Gunner v Commonwealth" (2001) 23 Sydney L Rev. 239 at 240 - 241350 Burke (2011), op cit, at 24351 Ibid352 Morton, J. “Working with, for and against the Act: Anti-anti-positivism and native title anthropology,” in Bauman, T (ed), Dilemmas in Applied Native Title Anthropology in Australia, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 2010, at 18353 Curthoys, Genovese and Reilly, op cit, at 141354 Carter, op cit355 Reilly and Genovese, op cit, at 33

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However, this is exacerbated in a native title sense in that the archive can only ever reflect what has

been observed. Traditional law and custom as recorded in documentary histories may be flawed by

the fact the practice of them may have been actively concealed from observers due to their private,

culturally sensitive and secret nature, as “both an important part of Aboriginal cultural life, but... also

... as a defence mechanism against social and cultural colonisation.”356 This may result in the

recorded behavior of Aboriginal people being an “atypical manner due to the presence of the

European observer” and in any case, “the observer is unlikely to understand what he or she is

observing.”357 This is also susceptible to error in the recordings given differences in language, which

is “critical since conceptual frameworks are preserved in language and often there are words for

which there are no real equivalents in another language.”358

Further exacerbating this condition is the general disregard of or superficial reference to Aboriginal

history amongst the Australian academy prior to more recent times (and certainly over the vast

majority of the period for which native title claimants must evidence continuity of connection to the

claim area). Interest and instruction on Australian History prior to the late 1960s was grounded on

what anthropologist W.E.H. Stanner branded “the Great Australian Silence” - the lack of Aborigines

featuring at all in Australian popular history, in particular a “cult of forgetfulness practiced on a national

scale” and the relegation of Aborigines in Australian history to a "melancholy footnote.”359 Similarly,

Reynolds argues that prior to 1960, Australian historians were “more interested in writing heroic tales

than in confronting the legal and ethical problems underlying the process of colonization.”360

When considering these factors as a whole, Curthoys, Genovese and Reilly “question the fairness of

establishing a legal definition of native title that requires the use of colonial archives to establish a

claim to native title.”361

The challenge for native title claimants and their representatives, and ultimately the Court, is therefore

to overcome the gaps and silences in the historical record which might otherwise suggest an absence

of Indigenous people from the land, so as to meet the continuing connection requirements for proof of

native title.362 This can be achieved through contextualizing and explaining the silences,363 evaluating

historical documents for internal consistency,364 through “drawing on various perspectives offered by

the texts, bringing together the patterns or schematized views”365 and by intertextuality,366 which

involves “looking at what was happening elsewhere in the wider region at the same time or by making

educated guesses on the basis of knowledge available for other areas further afield.”367 Carter argues

356 Choo and Hollbach (1999), op cit, at 8; McGrath, A. “’Stories for Country’: Aboriginal History and Land Claims” in McCalman and McGrath, op cit, at 253; Hollbach, S. and C. Choo’ "History and native title: a brief overview,” in Choo and Hollbach (2003), op cit, at 11; Curthoys, Genovese and Reilly, op cit, at 205357 Reilly (2000), op cit, at 464358 Attwood (2005), op cit, at 159 -160359 Stanner, W.E.H. The 1968 Boyer Lectures: After the Dreaming, ABC, Sydney, 1969, at 7, 24 - 25 and 53360 Reynolds (1999), op cit, at 164361 Curthoys, Genovese and Reilly, op cit, at 84362 Barker, M. QC. ‘Working as a Barrister on the Miriuwung Gajerrong Native Title Claim” in Toussaint, op cit, at 165; Curthoys, Genovese and Reilly, op cit, at 83; Read, P. “The Stolen Generations, the historian and the court room” (2002) 26 Aboriginal History 51 at 55363 Choo, C. Working as a Historian on the Miriuwung Gajerrong Native Title Claim,” in Toussaint, op cit, at 196364 Neate, in Horrigan and Young, op cit, at 314 - 315365 Choo and O’Connell in Paul and Gray, op cit, at 19 - 20366 Ibid, at 17367 Gara, in Paul and Gray, op cit, at 73; Ginzberg, op cit, at 84

71 (Page

that historians can assist the Court in these regards, by “providing generalisations of knowledge that

can influence both the selection of evidence and the inferences drawn from the evidence.”368 Filling

the gaps can also be achieved through the analysis and weighting of the archive in the context of

claimant oral evidence which addresses the same matters.369

All of these approaches come back to an examination of the context that the relevant recording was

made in. But as Curthoys, Genovese and Reilly argue, the law and historians take very different

approaches to these matters:

historians read documents in their cultural context - who produced it, when, why and so on

[whereas] the court may reject contextual information as irrelevant, preferring to rely on the

evidence as it appears on the face of the material presented to it.370

An example of this, according to Reilly and Genovese, is the approach to the archive and disregard

for the reflexive, contextual and non-objective characteristics of historical practice in Yorta Yorta HC,

which those authors described as “the worst of antiquarianism.”371

The remedy for this is for the Courts to allow a broader role for expert witnesses, which goes beyond

the narrow “nothing but the facts” approach to putting archival sources before the court,372 to expose

the historiographic biases in the written record.373 To do this, argues Osiel, judges must allow the

parties to paint with a broader brush to flesh out competing versions of history and contextualise

versions of historical arguments.374 However, as Ginzberg notes, the challenge is that a judicial

perspective may not be favourable to the integration of scattered fragments of evidence by reference

to context,375 a risk that Skyring argues is magnified in the adversarial system, which has a preference

for “history devoid of critical analysis.”376 Stuckey is critical of the approaches of Olney J in Yarmirr v

Northern Territory of Australia (No 2)377 (Yarmirr) and in Yorta Yorta, and the Full Federal Court in

Anderson, as well as that of McEachern CJ in Delgamuukw for adopting approaches which precluded

reference to context from the broad sweep of history.378

A useful example of how experts can use context to arrive at findings favourable to the existence of

native title is Reynolds’ The Law of the Land. This includes an interpretation of the imperial

authorities’ intentions in the context of key participants’ actions in general humanitarian causes

elsewhere,379 and the motivations behind the establishment of reserves, access rights and education

and welfare provisions.380

368 Carter, op cit369 Vincent, E. and C. Land "Silenced Voices” (October - November 2003) 67 Arena Magazine 19 at 21370 Curthoys, Genovese and Reilly, op cit, at 16 -17; See also Stuckey, op cit, at 27371 Reilly and Genovese, op cit, at 36372 Skyring, F. “History Wars - Debates about History in the Native Title Process,” in Choo and Hollbach (2003), op cit, at 75; Curthoys, Genovese and Reilly, op cit, at 89373 Reilly (2000), op cit, at 472374 Osiel, op cit, at 296375 Ginzberg, op cit, at 90376 Skyring, in Choo and Hollbach (2003), op cit, at 73 and 76377 (1998) 156 ALR 370378 Stuckey, op cit, at 33379 Reynolds, H. The Law of the Land, Penguin Books, Ringwood, 1992 at 124 and 181. See also Reynolds, H. Frontier, Allen & Unwin, St Leonards, 1996 at 141 - 153, 174 - 175; Broome, R. Aboriginal Australians: Black Responses to White Dominance: 1788- 1994, Allen & Unwin, St Leonards, 2002 at 53380 Reynolds (1992), op cit, at 125 and 139

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In relation to assessments of broader regional history context for the purposes of s 223, Gara gives as

examples “analysis of the nature and effects of frontier violence, the pattern of settlement, the

influence of government policies, missions and other European interests and other cultural,

environmental and political factors.”381

De Rose and De Rose FC showcase examples of how the same context may be given differing

weight and meaning. Strelein argues that notwithstanding a willingness to draw inferences,

O’Loughlin J’s judgment was contextually deficient due to His Honour’s inability to appreciate the

dispossessing impacts of land and employment policies of the relevant period, and disregard of expert

evidence which is not corroborated by clearly articulated oral evidence from the claimants.382 In

contrast, the Full Federal Court had greater regard to contextual factors such as law and custom

observance across the broader regional area, claim area specific knowledge of law, absences being

relatively recent and short, the active protection of cultural heritage sites, and the pastoral lessees

having sought to exclude the claimant group through intimidation.383

6. Genre and "Settler history"Above and beyond the gaps and the silences in historical archive in Australia, its very nature often

lends itself to chronicling through a particularly Eurocentric view. This is due to the nature of the

frontier under consideration; the motivations (express or ulterior), qualifications (or lack thereof) and

demographics of the writers themselves; and the political and socio-economic perspectives of the era.

As a history recorded by the colonisers or settlers, it has the potential to take form according to these

factors and intrinsically become a “settler history,” which constitutes:

fleeting snatches of time which have become immortalised through their recording. As such

they provide an artificial or stilted picture of these lives, capturing only the parts which were

observed by the Europeans who made these records for their particular purposes.384

As the evidence of continuity of connection is traced further back into the time period that must be

covered, the likelihood that this will come from the recordings of lay observers increases - limited to

the white incomers themselves,385 in contrast to experts who have had the benefit of broader historical

training or, indeed, the writings by or transcripts from traditional owners themselves.

Even where the exercise of traditional laws and customs has been witnessed, the record may well be

detracted from due to the writer’s lack of qualifications to understand what is being observed.386 In this

sense, as Ray argues, “the frontier messes mischievously with that conventional division between

primary and secondary sources, between contemporary and reminiscent ones, between eyewitnesses

and hearsay, between presence and absence.”387 The impact of such a lack of qualifications can be

381 Gara, in Paul and Gray, op cit, at 68382 Strelein (2009a), op cit, at 90 - 91 and 93383 Ibid, at 93384 Choo, C. quoted in Curthoys, Genovese and Reilly, op cit, at 103385 Clendinnen, I. “The History Question - Who Owns the Past?” (2006) 23 Quarterly Essay 1 at 26386 Reilly (2000), op cit, at 464387 Griffiths, T. "The Frontier Fallen” (March 2003) Eureka Street http://www.eurekastreet.com.au/articies/0303qriffiths.html (accessed on 23 January 2008)

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http://www.eurekastreet.com.au/articies/0303qriffiths.html

magnified by the political beliefs and socio-economic prejudices common to the era under

consideration, which have significant potential to colour the observations recorded. Such records are

susceptible to ethnocentrism, being the “unreflective judging of other societies and cultures in terms of

one’s own.”388 As Palmer argues, such complications are not limited to historical works but also

impact on the “interpretations of interpretations” involved in reconstructive anthropology.389

Heydon, whose work is considered in more detail in Chapter 7, also identifies various deficiencies in

the archival record (specifically as it relates to consideration by the Courts), as follows:

Nor is [historical records’] location in archives any guarantee of their indisputable accuracy:

their survival may have been haphazard, they may have been forged, and in themselves they

may signify little except after interpretation by persons possessing the skills of historians and

other related skills. In short, primary historical materials are not easy for non-historians to deal

with, particularly without assistance from the parties.390

Such matters have also been referred to by various participants in the History Wars, with Reynolds

acknowledging the power and authority of the written word that European records held over Aboriginal

stories,391 whilst Windschuttle has been criticised for have a “misplaced faith in the documents he

uses as giving a complete account of what was happening on the frontier.”392 But an even more

prevalent issue in the History Wars relevant to “settler history” is the influence of prevailing theories of

political economy, particularly in relation to societal progression, land use, population pressure, and

the benevolence of authorities. Rowley noted these factor were to trigger some “special legal

consequences”393 in relation to how colonial authorities recognised the Aborigines’ existing rights, and

accordingly the mode of colonisation that was to take place. Such theories have found favour in the

writings of various authors, including Blainey394 and Dawson.395 Attwood argues these theories

pervade the archival records and severely limit the extent to which traditional laws and customs are

recorded in their entirety, thereby having their own "colonising effect.”396

Other authors are at pains to demonstrate the ability of early Aboriginal society to, as Loos says,

“accommodate the European intruders within their world view and, in the process, modify it.”397

Reynolds similarly contends that the Aborigines “endeavoured to incorporate new experiences within

the resilient bonds of traditional culture” rather than “a rigid and unchanging Aboriginal society unable

to cope with the new challenges and which consequently collapsed suddenly and completely under

388 Rigsby, B. “Representations of Culture and the Expert Knowledge and Opinions of Anthropologists” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 4; Gray in Paul and Gray, op cit, at 34389 Palmer (2011), op cit, at 8390 Heydon, op cit, at 213301 Reynolds (1999) at 101 - 102302 Hirst, J. Sense and Nonsense in Australian History, Black Inc Agenda, Melbourne, 2005 at 81; See also Moses, A.D. “Revisionism and Denial” in Manne (2003), op cit, at 354393 Rowley, C.D. The Destruction of Aboriginal Society, Pelican, Ringwood, 1974 at 14394 MacIntyre and Clark, op cit, at 130395 Dawson, J. Washout - On the Academic Response to the Fabrication of Aboriginal History, Macleay Press, Sydney, 2004at 4 and 75396 Attwood. in Attwood (1996), op cit, at viii to xii397 Loos, N. “A Chapter of Contact: Aboriginal-European Relations in North Queensland, 1606-1992,” in Reynolds, H. (ed) Race Relations in North Queensland, James Cook University, Townsville, 1993 at 10; See also Reynolds, H. The Other Side of the Frontier - Aboriginal Resistance to the European Invasion of Australia, Penguin Books, Ringwood, 1995 at 2; Broome, op cit, at 140; McGrath "History and Land Rights,” in McCalman and McGrath, op cit, at 245

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the pressure of alien intrusion.”398 Drawing on the writings of explorers (ironically, given the discussion

below, including Edward Curr), Reynolds seeks to exhibit how Aborigines adapted their traditional law

and custom to respond to and incorporate aspects of European customs and methods, including use

of tools, linguistic changes, painting, music and dance, domestic animals and food.399 The historical

record evidences that they did so, he argues, such that “[c]ontinuity and change ran like an intricate

plait through the history of early contact.”400 Whilst “traditional beliefs ... continue to display a strength

and resilience,” the Aborigines “showed themselves just as capable of adapting to altered

circumstances.”401

Similar issues arise in relation to anthropological evidence. Glaskin argues that the law’s “little place

for indeterminacy” can transform anthropological work in “recording genealogies, working out kinship,

principles of land tenure, descent and inheritance” into “reified rules ... [of] absoluteness and

systemacity.”402 As a result, the combined work of the anthropologist and the Court has the potential

to reify aspects of culture in a given moment without regard to the “indeterminacies of everyday social

life,” which in turn objectifies Aboriginal identity and culture in a manner that disregards dynamic

systems of laws and customs403

These debates are important because, as discussed in Chapter 1, for the Court to accept adapted or

evolved rights and interests as still constituting ones that arise through the acknowledgement and

observance of traditional law and customs, such rights and interests must have their roots in such

traditional laws and customs. The inferential process of a decision maker who has reference to an

archive dominated by such views of political economy may be influenced by such views if they are not

adequately tested.

Furthermore, there is the general tendency in historical accounts of nation building to emphasise the

dramatic events in history, such as conflict and how this was resolved. The result can be a lack of

acknowledgement of the power relations in which the recording was made, whereby “the official

version of events [namely those created by the colonisers] dominates the narrative” in a manner

which “downplays Indigenous peoples’ agency and cultural survival.”404 In this way, Attwood argues

the official history “was not only the coloniser’s discourse; it was also a colonizing one.”405 It can also

result in a focus on discontinuities more so than continuities, the ultimate effect of which is to

overstate the impact of the extinction of native title.406 As Curthoys, Genovese and Reilly argue:

There was an assumption by the colonisers in the nineteenth century and early twentieth

century of the inevitability of Aboriginal extinction. As a result, the historical record has tended

to focus on the extinction of Aboriginal culture, not on its survival in the face of colonisation.

398 Reynolds (1995), op cit, at 2399 Ibid, at 8, 30-60, 105, 154-155, 162- 166, 172, 176 and 180400 Ibid, at 53401 Ibid, at 166402 Glaskin, K. “Litigating native title: Anthropology in the Court,” in Bauman, op cit, at 44 to 45403 Ibid, at 45404 Skyring, in Choo and Hollbach (2003), op cit, at 75405 Attwood in Attwood (1996), op cit, at viii; Hemming, S. “Taming the Colonial Archive: History, Native Title and Colonialism,” in Paul and Gray, op cit, at 61 - 63406 Reilly (2000), op cit, at 465

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The very presence of Aboriginal peoples in the archives suggests a degree of dislocation from

traditional lands.407

Further, archival records are not written for the purpose of use as evidence in native title claims. Much

history was not written with the intention that the documents would be interpreted so as to affect the

rights of real people or with the needs of litigation in mind.408

These issues have been noted as posing particular challenges for specific native title claims. Pearce

argues that the “mainstream [as opposed to “Aboriginal”] view of Australian history was evident in

many of the expert witness submissions we saw in native title cases litigated by the previous [Western

Australian] government.”409 Again, perhaps the most commented on example is in relation to Yorta

Yorta. Irvin suggests that “historical assumptions in relation to the ‘settled south’” may have

unwittingly influenced the Court’s consideration of the evidence in that case.”410 Such assumptions

are that traditional Aboriginal people live in northern Australia, whereas in southern Australia only

non-traditional Aboriginal people live, with the effect of such premise that continuity of connection is

lost in those “settled” areas.411 As a consequence, there is an even greater need for contextual

analysis, reflexivity and familiarity with Indigenous versions of history in native title claims in south

eastern Australia.”412

These criticisms largely relate to the weight Olney J afforded the evidence tendered by the

respondents, in the form of the published works of settler Edward Curr, over oral evidence from the

claimants.413 This was not only in relation to continuity of connection, but also regarding the content of

traditional laws and customs.414 Keon-Cohen and Seidel describe Olney J’s judgment as a travesty

given it was largely based on the “necessarily ethnocentric written account of an inexperienced

European squatter.”415 Rose highlights the “settler history” nature of the evidence which Olney J

afforded so much weight, in that the author of the evidence was a dispossessor himself who promoted

his own “justifying ideology for colonisation,” was not historically trained and did not account for his

methodology.416 That author also notes that Olney J was guided by “common tropes” from the

theories of political economy referred to above.417 Rose also observed the level of reliance Olney J

placed on Curr could have had the result that, had native title been determined to exist, this would not

have included rights and interests to care for sacred sites, as Curr’s writings make no reference to the

407 Curthoys, Genovese and Reilly, op cit, at 83408 Wooten in McCalman and McGrath, op cit, at 32; Ray, A.J. “Expertise in Aboriginal Title Claims Litigation in Australia and North America, 1946 - 2002,” in McCalman and McGrath, op cit, at 103; Reilly (2000), op cit, at 464409 Pearce, D. “The transmission of stories, history and cultural knowledge within the Noongar community is alive and well,” in Choo and Hollbach (2003), op cit, at 59410 Irvin, Z. "A Comparative Analysis of Historical Assumptions in the Yorta Yorta and Single Noongar Decisions” (December 2006/January 2007) 6 (24) Indigenous Law Bulletin 24 at 24411 Owen, C. quoted in Skyring in Bauman and Click, op cit, at 341. See also Ritter in Paul and Gray, op cit, at 85; Ketley, H. and C. Ozich, “’Snapshots of adventitious content’ The assessment of oral and historical evidence in native title claims,” in Choo and Hollbach (2003), op cit, at 87; Attwood in Attwood (1996), op cit, at xxvi, 110 and 112-113412 Hemming in Paul and Gray, op cit, at 54413 For completeness though, there are instances on both sides of the History Wars divide of positive reviews of Curr’s role in recording history. See Blainey, G. Triumph of the Nomads, Pan MacMillan, Sydney, 1997, at 97; Windschuttle, K. The Fabrication of Aboriginal History, Volume One, Van Diemen’s Land 1803 - 1847, Macleay Press, Sydney, 2002, at 332; Reynolds (1995), op cit, at 40 and 61; Reynolds (1996), op cit, at 11; Reynolds, H. “The written record,” in Attwood and Foster, op cit, at 86; Broome, op cit, at 51 and 655414 Reilly (2000), op cit, at 461415 Keon-Cohen and Seidel in Bauman and Click, op cit, at 251416 Rose, in Paul and Gray, op cit, at 39417 Ibid, at 40-43

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existence of sacred sites.418 Further, as pointed out by Case, the works by Curr were compiled some

32 years after the events they purport to record.419

Attwood describes Curr as being “profoundly ignorant” of the relevant Aboriginal culture,420 whilst

Manne alleges Curr “spoke of the necessity of a policy of extirpation.”421 Reilly suggests Olney J’s

methodology for use of historical evidence has the result of perpetuating of colonialism.422 Gray

describes the “selective and partial use of material extracted from nineteenth century ethnographic

texts to support the opposition case” as “a type of analysis which would be considered dishonest

scholarship in an academic setting.”423 Van Krieken notes that it would be a rare practice in history to

grant the degree of authority that Olney J did to a single participant's narrative.424 Similarly Litchfield

claims that Olney J’s judgment was flawed because it “did not test the potential weakness in every

text.”425 Expert historical evidence could have assisted Olney J to avoid these pitfalls, argues Carter,

through providing different generalisations with which to assess the evidence, with the result that

Olney J may have been less inclined to draw the inference that the observance of traditional law and

customs had ceased by the mid-nineteenth century.426

Reilly and Genovese attribute the same criticism of accepting the historical record at face value to

Branson and Katz JJ on appeal in Yorta Yorta FC. However, Black CJ’s minority decision in the Yorta

Yorta FC is said by Carter to provide “an indication that different generalisations may have supported

a different inferential analysis,” having regard to His Honour’s “awareness of the limitations of colonial

records.”427

Stuckey comments that Olney J’s reliance on Curr undermines the suggestion by Gummow J in Wik

that there is no taxonomy regarding the use of history in Australian Courts, although it is merely a

basic level of recognition and “one which permits a worrying degree of judicial evaluative practices.”428

The challenge for the Court then is to be conscious of the “genre” or what an historical text was

written for and the applicable writing conventions and common tropes,429 with vigilance that written

histories reflect the perspectives and culture of the recorder - often the colonisers rather than the

colonised. In meeting this challenge, the evidence needs to be marshalled and interpreted in a way,

as described by Hemming, so as to explain the “relationship between the record, the historical

experiences of Indigenous People and the contemporary cultural and political reality.”430 This requires

an exercise in reading the sources “against the grain,” which as Skyring (who has been an historical

expert witness before Federal Court for claimants in numerous native title cases) argues, involves

418 Ibid, at 44419 Case, op cit, at 18420 Attwood (2003), op cit, at 13 - 14421 Manne (2005), op cit, at 318 - 319422 Reilly (2000), op cit, at 454 - 455423 Gray, G. “History in the Courtroom: AQ Brief Consideration of Some Issues,” in Paul and Gray, op cit, at 34424 Van Krieken (2006), op cit, at 585425 Litchfield, op cit, at 15426 Carter, op cit427 Ibid428 Stuckey, op cit, at 24429 Rose in Paul and Gray, op cit, at 37430 Hemming, in Paul and Gray, op cit, at 51

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analysing these historiographic issues amongst the competing interpretations of the evidence and

presenting these to the Court.431

A similar remedy adopted elsewhere for settler history is the legal rule of contra proferentem, which

involves interpretation of a contract against its author “in order to equalise the asymmetry between

those who had the power to write ... and those who did not.”432 This includes in the Waitangi Tribunal

in New Zealand, as well as in the interpretation of treaties by the Canadian Supreme Court and the

US Supreme Court.433 Whilst strictly speaking this relates to the interpretation of treaties according to

the indigenous language version of the treaty, it is a logical extension of the concept by reading the

archive against the grain, and such an approach could be readily adopted in the interpretation of all

historical documents where “settler history” is a risk.

7. ErrorThe History Wars abound with examples of accusations of erroneous findings amongst participants’

work 434 A common theme is the accusation that participants have pre-concluded theses and leave

out evidence that would contradict this,435 and allegations of “unsubstantiated guesswork.”436 In a

judicial sense, similar allegations have been levelled at the HREOC report arising from the “National

Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families.”437

This potential for error has also extended to discussions regarding the expert witness in native title

claims. A significant source of concern in this regard may arise given the suggestion that matters of

history and anthropology are not in the same “factual league” as the harder sciences from which

expert witnesses may be drawn. Accordingly, it has been suggested that there is no clear principle of

the standard by which the acceptability of historical works is to be measured.438

431 Skyring in Choo and Hollbach (2003), op cit, at 71 - 72432 Johnson, M. “Making History Public: Indigenous Claims to Settler States,” in Attwood, Chakrabarty and Lomnitz, op cit, at 109433 Strelein, L. “The ‘Courts of the Conqueror’: the Judicial System and the Assertion of Indigenous Peoples’ Rights” [2000] AulndigLawRpr 22 http://www.austlii.edu.au/cqi-bin/viewdoc/au/iournals/AUIndiqLawRpr/2000/22.html (accessed 14 September 2017), referring to R v Marshall; Belgrave, op cit, at 235434 Examples include Reynolds (1992), op cit, at 40; Broome, op cit, at 54; Connor, op cit, at 56; Dawson, op cit at 116 to 160 and 234; Broome, R. "The statistics of frontier conflict,” in Attwood and Foster, op cit, at 97; Day, D. Claiming a Continent - A New History of Australia, HarperCollins, Sydney, 2001, at 88; Ryan, L. “Who is the Fabricator,” in Manne (2003), op cit, at 237 and 251 -253; Reynolds, H. “Terra Nullius Reborn,” in Manne (2003), op cit, at 128; and Blainey, G. “Native fiction” (April 2003) 21(8) The New Criterion http://www.newcriterion.com/archive/21/apr03/blainev.htm (accessed on 23 January 2008)435 Reynolds makes such allegations against Windschuttle in Reynolds in Manne (2003), op cit, at 114 - 115, 122 - 123 and 127, 134; So too does Moses in Moses in Manne (2003), op cit, at 363; Windschuttle makes similar accusations against Broome in Windschuttle, K. “The myths of frontier massacres in Australian history, Part II - The fabrication of the Aboriginal death toll” [November 2000] Quadrant http://svdnevline.com/Massacres%20Part%20Two.htm (accessed 23 January 2008); and against Reynolds in Windschuttle, K. “The myths of frontier massacres in Australian history, Part III - Massacre stories and the policy of separatism” [December 2000] Quadrant http://svdnevline.com/Massacres%20Part%20Three.htm (accessed 23 January 2008)436 Windschuttle (November 2000), op cit; Windschuttle (2002), op cit, Chapter 10; Windschuttle, K. “Doctored evidence and invented incidents in Aboriginal historiography,” in Attwood and Foster, op cit, at 100; Evans “Plenty Shoot ’Em,” in Moses, A.D. (ed), Genocide and Settler Society, Berghahn Books, New York, 2004, at 167; Attwood, B. “Historiography on the Australian Frontier,” in Attwood and Foster, op cit, at 171 -174; Attwood, B. “Mabo, Australia and the end of history,” in Attwood (1996), op cit, at 106437 See for example Brunton, R. “Genocide, the “Stolen Generations” and the “Unconceived Generations’”’ [May 1998] Quadrant 19 at 24438 Dreyfus in McCalman and McGrath, op cit, at 72

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http://www.austlii.edu.au/cqi-bin/viewdoc/au/iournals/AUIndiqLawRpr/2000/22.html

http://www.newcriterion.com/archive/21/apr03/blainev.htm

http://svdnevline.com/Massacres%20Part%20Two.htm

http://svdnevline.com/Massacres%20Part%20Three.htm

Crispin identifies a number of factors which may make expert witness immunity from error

unattainable, including that everyone makes mistakes in “methodology, logic and competence,”439 and

the validity of conclusions drawn ... will usually depend at least in part, upon ... the validity of

propositions stated in relevant academic or professional literature.”440 Further, “subconsciously

assumed intellectual constraints may exclude any consideration of relevant, perhaps decisive,

issues.”441 Crispin attributes wide differences of opinion between experts at least partly to differences

in personality and background.442

Amongst the participants in the History Wars and associated epistemological debates, there are a

number of examples of accusations of error in the interpretation of the historical record in native title

claims. Alleged errors include the mere mechanical and partial use of evidentiary material, combined

with the methodological and historiographic issues relating to context and genre. An early example is

the criticism by Reynolds of both Blackburn J in Milirrpum and Dawson J in Mabo, of misinterpreting

the effect of one of the more significant Orders-in-Council, by placing too great a reliance on the

opinion of a 19th century historian who "had no access to the archival material in Britain available to

the modern scholar and therefore could only be guessing as to the intentions of the Colonial

Office."443

However, Reynolds comes in for his own criticism in relation to submissions made on behalf of the

claimants in Wik. The competing histories put before the High Court in that matter, and the High

Court’s decision, is a useful example of how issues such as use of context on the one hand, and

accusations of selective and partial use of evidentiary material on the other, may have influenced the

findings of the Court. Indeed in Ward HC, Callinan J notes that in Wik:

Their Honours’ use of history, particularly dispatches from Earl Grey to the Governor of New

South Wales has not escaped criticism by professional historians and other academics.444

In an article drawn from the claimant submissions in Wik, Reynolds and Dalziel use context as a basis

for interpretation of historical documents and events, namely the upsurge of humanitarian sentiment

in Britain (subsequent to the abolition of slavery),445 and attribute any lack of Colonial Office effective

intervention upon the means available for policy implementation being “imperfectly suited to colonial

conditions."446 In doing so they conclude that the history of the occupation and leasing of Crown lands

and Colonial and State land laws evidences that Aboriginal People were not intended to be excluded

from the areas of pastoral leases.447

However, Fulcher, who worked for the State of Queensland as an in-house historian in relation to the

Wik case, suggests that the emphasis placed by Reynolds, and accepted by the Court, on colonial

439 Crispin, op cit, at 7440 Ibid441 Ibid, at 10442 Ibid, at 11443 Reynolds, H. “Native Title and Pastoral Leases,” in Stephenson and Ratnapala, op cit, at 127444 [2002] HCA 28 at fn 816445 Reynolds, H. and J. Dalziel, “Aborigines and Pastoral Leases - Imperial and Colonial Policy 1826 - 1855” 1996 19(2) UNSW Law Journal 3'\ 5 at 318 and 323446 Ibid447 Ibid, at 321

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administrators' concerns for the preservation of native title in pastoral leases constitutes a partial and

selective use of the historical material.448 Examples of such allegations include:

• Omissions by Reynolds and Dalziel to reference comments by, and a dispatch from,

Secretary of State for the Colonies Earl Grey, in which it is indicated Grey’s intention that in

New Zealand all unoccupied lands vest in the Crown, from which Fulcher infers the

application of these views by Grey to Australia.449

• Reynolds and Dalziel have edited a significant part of a notation made on legal advice to

Grey, to exclude words which may indicate that the Colonial Office's intentions in relation to

pastoral leases was to restrain the access of Aborigines and thereby legally exclude any

suggestion of proprietary rights.450

• In relation to another of Grey's dispatches, Reynold’s and Dalziel place emphasis within a

reference to indigenes' "former right to hunt" on the word "right,” thereby neglecting the

importance of the word "former.”451

• A failure by Reynolds and Dalziel to explain, in relation to the contradictory intentions of the

alleged Colonial officers and settlers regarding recognition of native title, why the Colonial

Office officials did not prevail and impose recognition of native title in Australia, as they had

done elsewhere in the new world.452

8. Subjectivity, advocacy, bias and politicsA major point of contention in the History Wars is whether historical works can and should be value-

free, to “show the past as it really was and to understand it on its own terms, and thus have

independent historical truth.”453 In these controversies, the protagonists have frequently accused each

other of not only lacking objectivity, but pursuing their work with political aims.454 Connor takes this

debate directly to the feet of the Court, in arguing that the term "Terra nullius is ... part of a political

movement which used history to change the present... An argument of modern land rights politics.”455

By taking this course, Connor argues "[t]he Mabo judges, just like Australian historians, picked and

448 Fulcher, J. “Sui Generis History? The Use of History in Wik” in Hiley, G. (ed), The Wik Case: Issues and Implications, Butterworths, Sydney, 1997 at 53- 54; Fulcher, J. “The W/'/c Judgment, Pastoral Leases and Colonial Office Policy and Intention in NSW in the 1840s” (1998) 4 Aust J Leg Hist 33 at 39 - 43; These comments, Fulcher argues, are supported by contemporaneous lectures by Permanent Under-Secretary of State, Herman Merivale - Fulcher, op cit, at 54 - 56449 Ibid, at 53450 Ibid, at 55 - 56451 Ibid, at 34 and 52, Fulcher in Hiley, op cit, at 56452 Fulcher, op cit, at 36453 Attwood in Attwood (1996), op cit, at xvii and 141 fn 55454 Blainey, G. Blainey - Eye on Australia. Speeches and Essays of Geoffrey Blainey, Schwartz and Wilkinson, Melbourne, 1991, at 49 and 125; Windschuttle, K. “Foreword,” in Dawson, op cit at vii and at ix, with particular reference to Reynolds (1996), op cit; Windschuttle (December 2000), op citi_Windschuttle (2002), op cit, at 5 - 7 and 400 - 404; Windschuttle, K. The Killing of History, Encounter Books, San Francisco, 1996, at xi; Manne “Introduction” in Manne (2003), op cit, at 7; Attwood (2005), op cit, at 62, 81 and 122; Manne (2005), op cit, at 310; Reynolds in Manne (2003), op cit, at 135; Ryan in Manne (2003), op cit, at 255; Attwood in Attwood and Foster, op cit, at 176 and 181; Attwood (2005), op cit, at 180; Attwood (2003), op cit, at xiv and 74; Rowley, op cit, at viii; Evans, R. Fighting Words - Writing about Race, University of Queensland Press, St Lucia, 1999, at 10 and 18; Reynolds (1999), op cit, at 4, 124 and 244; Reynolds(1995), op cit, at 1 and 198 - 200; Reynolds (1996), op cit, at 245; Bagshaw, G. “Anthropology and Objectivity in Native Title Proceedings” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 1; MacIntyre and Clark, op cit, at 218455 Connor, op cit, at 9, 257 and 260

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chose definitions of terra nullius to construct their judgments."456 Writing after the Mabo judgment was

delivered, Reynolds takes the contrary view, namely that “the Mabo decision ... is far more securely

rooted in the Australian experience than many observers appreciate.”457

Similarly in relation to Wik, Selway has observed the tendency of commentators to allege that

members of the Court may have been be swayed by “broad perspectives of justice and equity, and

that their reliance upon the historical record was to support a conclusion arrived at by other means.”458

However, Shaw disputes the ability for any social science to be value-free and objective, particularly

in relation to matters such as native title “where emotions run high, particularly among claimants who

feel justified that their culture is under threat.”459

Trends in academic circles have also been said to pose potential influence over the objectivity and

motivations of experts.460 Crispin describes this as having “sometimes led to extravagant and

potentially misleading claims of accuracy based upon purely theoretical considerations,”461 and notes

the potential for bias particularly “when considerations of loyalty intrude,”462 463 because:

the opinions and perceptions may be influenced by those in the same professional group or

with similar objectives. These may give rise to a prevailing paradigm ... a strong network of

commitments which shape the practice of those who share it.462

This “groupthink” has potential for effect on the objectivity of a witness and the danger of attempts to

prove facts accord with presuppositions.464 However, Russell argues there is also the potential for

academic fashions based on “curiously misunderstood laws of objectivity” to denounce the use of

interpretive methods within the discipline.465

Objectivity as an ideal for the Court’s findings of facts may also face challenges when relying on

experts’ methodologies which explain through narratives and interpret according to inferences and

context (which may in turn involve subjective assessments).466 There are also a number of real-world

influences that complicate notions of objectivity in relation to expert opinions. These include

institutional politics; ethics; competition; multiple techniques and methods; variable levels of

relevance; public concerns perceptions; and levels of trust.467 There is also the contradicting

standards between the different types of work carried out by experts. Anthropologists engaged to

provide an opinion away from litigation but which is subsequently put to the Court as testimony,

456 Ibid, at 189 and 191, where Connor makes similar criticisms of Murphy J's judgments in Wacando v Commonwealth (1981) 148 CLR 1 and Coe v Commonwealth (1979) 24 ALR 118 at 137457 Reynolds, H. “The Mabo Judgment in Light of Imperial Land Policy” (1993) 16(1) UNSW Law Journal 27 at 28458 Selway, op cit, at 156 -157459 Shaw (July 2001), op cit, at 2; Shaw, B. "Expert Witness or Advocate? The Principle of Ignorance in Expert Witnessing” (October 2001) 2(11) Land, Rights, Laws: Issues of Native Title at 5460 Windschuttle (November 2000), op cit; Wooten in McCalman and McGrath, op cit, at 28461 Crispin, op cit, at 9462 Ibid, at 13463 Crispin, K.J. “Humanities in the Courtroom,” in McCalman and McGrath, op cit, at 173464 Ibid465 Russell, P. 'Almost believing: the ethics of historical imagination' in MacIntyre, S (ed), The Historian’s Conscience - Australian historians on the ethics of history, Melbourne University Press, Carlton, 2004 at 108466 Dreyfus in McCalman and McGrath, op cit, at 78 - 79467 Edmond, G. "After Objectivity: Expert Evidence and Procedural Reform" [2003] SydLRev 8 at 9

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Edmond argues, may have to find ways to finesse their “duties between the partial performance

permitted outside the Court and the purported duty of impartiality inside.”468

The adversarial nature of Court proceedings also has the potential to impact the impartiality of those

giving evidence in them. Kirby J concedes “a variation from Platonic notions of perfect impartiality has

to be tolerated in any system of adversarial or accusatorial justice.”469 Experts may be accused of bias

on behalf of a particular client due to their experience and career history working with particular

groups, political beliefs or simply by who is paying their fee, resulting in perceptions of “courtroom

history” which selects data and theories which further the goals of the client,470 and the evolution of

the expert witness into the “professional witness.”471 Palmer argues the nature of anthropology raises

particular concerns around objectivity, as follows:

The very nature of anthropological inquiry demands that practitioners engage in social

relationships which necessarily result in the development of human relationships. Non

anthropologists understandably may conclude that this is likely to lead to a lack of

objectivity.472

In this way, expert evidence prepared expressly for litigation has been given the term “junk science,”

to emphasise its potential to be subject to the influences of advocacy and partisanship.473 As a

consequence, Courts may find favour with historical accounts not prepared for the purpose of

prosecuting a claim, seeing these as more objective474 (although as discussed above in relation to

settler history, these may pose their own risks).

Issues of bias and agenda may also be alleged against claimants giving oral evidence, given they are

seeking to benefit from the evidence they are the custodians of.475 This is discussed further in

Chapter 5.

Notwithstanding the suggestion by some that the Court may be ill-equipped to diagnose bias in an

expert witness,476 throughout the relevant literature there are various suggestions around how

subjectivity and impartiality may be managed through the process. Evans recommends experts adopt

“a detached mode of cognition, a faculty of self-criticism and an ability to understand another person’s

point of view.”477 Shaw suggests that advocacy by experts can be safeguarded against through the

application of reliable methodologies which are accepted in the relevant discipline.478

468 Edmond (2004), op cit, at 216469 Kirby, M. "Expert Evidence: Causation, Proof and Presentation” International Institute of Forensic Studies Inaugural Conference, Prato, Italy, 3 July 2002, http://www.hcourt.qov.au/publications/speeches/former/speeches-bv-the-hon-michael- kirbv (accessed 14 September 2017)470 Ray in McCalman and McGrath, op cit, at 110471 Barker in Toussaint, op cit, at 159. See also Wooten in McCalman and McGrath, op cit, at 27 - 28; Green, N. “Three-legged Elephants: Native Title Histories,” in Toussaint, op cit, at 156; Gray in Paul and Gray, op cit, at 26; Crispin, in McCalman and McGrath, op cit, at 172 - 173; Glaskin in Bauman, op cit, 35 to 54 at 44472 Palmer (2007), op cit, at 5; Palmer (2011), op cit, at 6473 Burke (2011), op cit, at 249474 Ray in McCalman and McGrath, op cit, at 105475 McGrath in McCalman and McGrath, op cit, at 253476 Sperling, H.D. "Expert Evidence: The Problem of Bias and Other Things” Supreme Court of New South Wales Annual Conference, Terrigal, 3-4 September 1999 at 2477 Evans (2000), op cit, at 219478 Shaw (October 2001), op cit, at 5, namely anthropological method (for instance, participant observation), oral history method (for instance recording narratives), legal method (syllogistic chain of reasoning with a hermeneutic emphasis), and historical method (accessing archives but also doing oral history).

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http://www.hcourt.qov.au/publications/speeches/former/speeches-bv-the-hon-michael-kirbv


The Court may have regard to overriding duties in contracts of retainers, clearly defined instructions to

constrain the potential for advocacy, transparent and fulsome record keeping, the inclusion and

consideration of adverse evidence in reports (not left to arise only on cross-examination) and a

willingness to make concession in the face of evidence or hypotheses to the contrary.479 In this way,

Dr Beckett, the anthropological expert witness called by the claimants in the Mabo v State of

Queensland480 trial of facts, is said to have reinforced his notional independence through his

willingness to state views contrary to the plaintiffs’ case, making appropriate concessions during

cross-examination, projecting circumspection about his interpretative claims, and a willingness to

identify as speculation opinions offered on meagre data.481

9. Multiple filtersThe involvement of source material, interpreted and inferred from by experts, led as evidence and

submissions as to appropriate inferences by lawyers, and the final ruling of valid inferences by judges

means there are multiple filters applied in the Court’s inferential process. Each participant is differently

influenced and have their own biases regarding historiographic debates and epistemological issues.

Crispin describes this as the “three stages of refraction”:

the stage at which the scientist forms his or belief or conclusions, the stage at which the

counsel presents and addresses the scientific evidence at trial and the stage at which the

jurors form their conclusion. At each stage the human frailties of those concerned may lead to

some measure of distortion482

This situation raises issues in relation to the point or points at which it is appropriate that inferences

from the evidence be drawn. Connolly suggests that the general approach of the Court is not to permit

expert witnesses to draw inferences to missing or complex facts, as that would be to usurp the proper

role of the Court itself.483 This may be exacerbated in circumstances where the relevant discipline,

such as the social sciences and the humanities, sees itself as essentially contested.484

However where inferences are required based on expertise that exceeds that of the Court, certain

experts may be able to make such inferences for them.485 According to Connolly, Courts should rely

on such inferences drawn by expert witnesses if these “could assist the court in the construction of an

objective account of the facts in issue and if it does not unnecessarily intrude upon the court’s official

inferential or narrative function.”486 This is in the circumstances noted by Wooten as follows:

Unspecialised judges are called on to decide extraordinarily complex issues about culture,

cultural continuity and history of societies that are quite foreign to what their personal and

479 Chalk, A. “Anthropologists and Violins - A lawyer’s view of expert evidence in native title cases” Native Title Conference: Expert Evidence in Native Title Court Cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 9480 [1992] 1 Qd R 78481 Burke (2011), op cit, at 81 - 82482 Crispin, op cit, at 5; Crispin in McCalman and McGrath, op cit, at 167, 168 and 175-177483 Connolly A. “Legal Facts and Humanist Stories: The Humanist as Expert Witness” in McCalman and McGrath, op cit, at 138484 Van Krieken (2006), op cit, at 576485 Ibid at 139486 Ibid, at 139-140

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professional lives have prepared them to do... For the most part the lawyer advocates share

their limitations.487

Various commentators remain critical of particular judges in native title determinations, who are willing

to rely on their own perceived skills to interpret matters of social science and the humanities.488 Burke

suggests “judges tend to feel no compunction in bypassing historians when they are interpreting

historical documents.”489 Indeed, as noted by a former judge, one of the dangers of history in legal

reasoning is the failure of the lawyer or Judge to properly understand the history (including its

limitations).490

In relation to judges adjudicating what appropriately constituted specialised knowledge in the

anthropological field, various authors have criticised the determination of Sackville J in Jango v

Northern Territory491 (Jango), Burke states that in that case, the Court “blundered in to his

conclusions with only a perfunctory acknowledgement of his own limitations in presenting an

alternative view of anthropological opinion.”492 Similarly Glaskin notes that Sackville J:

made comments regarding how the anthropologists should have conducted their research,

expressing the view that he was not at all sure why the anthropologists needed to ‘carry out

such extensive interviews’, and suggesting that this might ‘duplicate’ the role of lawyers. This

reflects a fundamental misunderstanding of anthropology.493

Carter is similarly critical of Lindgren J’s judgment in Harrington-Smith v State of Western Australia

(No 7)494 (Wongatha No 7), which indicated a reluctance by the Court “to recognise historical

interpretation as an opinion deriving from ‘specialised knowledge’, again reflecting an assumption that

the court was equipped to undertake this sort of interpretation without assistance.”495

Criticisms have also been levelled at individual judges for their differing willingness to draw inferences

from the oral evidence of claimants in support of native title’s ongoing existence, according to the

wide scope given to them to determine sufficient evidence of past traditional laws and customs.

Behrendt, Cunneen and Libesman suggest the various Yorta Yorta decisions “leave findings with

respect to traditional laws and culture dependent on the individual judge’s capacity to listen to and

appreciate the claimant’s evidence.”496

Curthoys, Genovese and Reilly state that Selway J in Gumana v Northern Territory of Australia497

(Gumana), Wilcox J in Bennell and Merkel J in Rubibi No 5 were all “prepared to draw positive

inferences of continuity from the oral testimony of claimants, and from the fragments of the historical

record which are consistent with the evocation of these practices,” but by contrast, Mansfield J in Risk

487 Wooten in McCalman and McGrath, op cit, at 33 - 34488 Reilly (2006), op cit, at 27489 Burke (2011), op cit, at 258490 Selway, op cit, at 148491 [2006] FCA318492 Burke (2011), op cit, at 257493 Glaskin in Bauman, op cit, at 47494 [2003] FCA 893; (2003) FCR 424495 Carter, op cit496 Behrendt, Cunneen and Libesman, op cit, at 203497 [2005] FCA 50

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made a negative determination “despite strong evidence of present-day observance of traditional laws

and customs, and a correspondence of these laws and customs with the past.”498 In so doing, those

authors argue, the individual judges “have revealed different attitudes and approaches to

interpretation of past events, and the use of these events in establishing native title.”499 Similarly,

Mansfield J’s judgment is cited as an example of the inherent discretion judges have in construing

silences in the archive.500 501

Strelein is also critical of the judicial filter in native title determinations post Yorta Yorta HC, in that the

views of the trial judge in that matter:

demonstrated the vagaries of an assessment based ... on a judge’s perception of the group

... Native title claimants must rely on the ability of a non-lndigenous judiciary to conceptualise

the contemporary expressions of Indigenous identity, culture and law as consistent with the

idea of a pre-sovereign normative system.™

The multiple stages of refraction also creates the need to consider the practice of judicial notice,

whereby evidence may be considered as sufficiently within general knowledge making it capable of

being drawn upon as within the common knowledge of the Court.502 As Kirby J has noted, “judges are

not entirely hostage to the parties’ research.”503 Various authors have commented on the judicial

notice taken of Reynolds’ approach to history in Mabo and in Wik.504 Van Krieken notes that:

Reynolds's historical arguments were assimilated into the fabric of the judgments without

having to pass any of the hurdles concerning expert opinion. They were simply taken as given

by the High Court Justices, subjected to no uncomfortable comparison with live testimony

(which was in any case impossible).505

10. Unease amongst the adversarial systemThe appropriateness of an adversarial system in the evaluation of evidence from anthropologists,

historians and indeed the oral evidence of native title claimants has been the subject of mixed

reaction amongst commentators. For expert witnesses, this system has been said to diminish their

ability to explain complex technical concepts, having been “thrown into a stressful climate of urgent

preparation and adversarial expectation to produce clear-cut statements on the basis of which courts

can make final findings of fact.”506

498 Curthoys, Genovese and Reilly, op cit, at 71409 Ibid500 Ibid, at 68501 Strelein (2009a), op cit, at 80502 Wooten in McCalman and McGrath, op cit, at 26503 Kirby (2005), op cit, at 10504 Manne in Manne (2003), op cit, at 3; MacIntyre and Clark, op cit, at 126; Hunter in Attwood (1996), op cit, at 12; Connor, op cit, at 218 and 220; Selway, op cit, at 151; Van Krieken (2006), op cit, at 582 - 583; Attwood (2009), op cit, at 297; Attwood (2004), op cit, at 16; Behrendt in Curthoys, Genovese and Reilly, op cit, at xii; Davison, G. “History on the Witness Stand: interrogating the past,” in McCalman and McGrath, op cit, at 58 - 59; Gara in Paul and Gray, op cit, at 69; Ritter (1999), op cit, at 4; McQueen, H. Suspect History - Manning Clark and the Future of Australia’s Past, Wakefield Press, Adelaide, 1997 at 202; Clendinnen, op cit, at 56; Partington, G. The Australian History of Henry Reynolds, Amec, Adelaide, 1994 at 1, 2 and 19; Reynolds (1999), op cit, at 202.505 Van Krieken (2006), op cit, at 583506 Wooten in McCalman and McGrath, op cit, at 33 - 34; Crispin in McCalman and McGrath, op cit, at 176

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The issues identified previously in this Chapter in relation to practitioners of the social sciences and

humanities demanding reference to broader contexts and conceding the potential for multiple

interpretations may also fall prey to greater legal challenge in the adversarial setting. Clement draws

on her own experience giving evidence on behalf of the Crown in native title claims. She suggests

that the inclusion of “philosophical arguments that are commonplace in the humanities” in expert

witness reports may be vulnerable in the context of the “imbalance of power in the court,”507

particularly as the witness does not direct the lines of enquiry made on their evidence in the

examination and cross examination processes.

More generally, alternatives may be found in more inquisitorial approaches, although these too have

been said to have been not without their limitations.508 Case management approaches within the

existing adversarial system, such as conference of experts, have been found to be “likely to lead to

more nuanced, albeit more discursive conclusions.” 509 However, the adversarial system itself is not

universally condemned as inept at dealing with the relevant issues and requisite outcomes.510 511 As

someone with experience as an expert witness (although not in a native title context), Evans for one

did not share the concern that the Court was not a suitable forum for the resolution of historical and

methodological dispute:

Even in the courtroom, we had as much time as we wished to discuss the issues we had

raised in our reports. In the witness box, it was not difficult to insist, if an attempt was made by

the cross-examiner to cut inconvenient testimony short, that one had sworn an oath to tell the

whole truth as well as nothing but the truth, and the judge was invariably sympathetic to the

argument, however lengthy the answers to which it led. There was no question of any moral

judgment being demanded of the court. The issue centred on an empirical question.5''''

11. Conclusion to Chapter 4This Chapter considered the challenges for the inference imperative in native title addressed through

recent historiographic and epistemological debates which relate, directly or indirectly, to the proof of

native title. It analysed the need, identified in the literature, for the Courts to apply inferential

reasoning in light of the vagaries of archival material and expert evidence from the social sciences

and humanities. Significantly, a number of contributors to the relevant literature make reference to

specific native title cases. This is most extensive in relation to early, formative cases, but importantly

also extends to more recent cases which allegedly involve disparate applications of the reasoning

processes. Arising from this analysis, for the purposes of developing the Inference Guidelines and in

answering Research Question 1 to the extent it relates to recent Australian historiographic and

epistemological debates, it is clear that the inferential process should be applied:

507 Clement, C. “Historians and Native Title: A Personal Perspective” (December 2000) 91 Australian Historical Association Bulletin 86 at 86 - 88508 Goodall finds favour with the informal and culturally appropriate approach of the Maralinga Royal Commission, but notes a lack of flexibility in the Royal Commission into Aboriginal Deaths in Custody - Goodall in Attwood and Arnold, op cit, at 108509 Curthoys, Genovese and Reilly, op cit, at 105 -106510 See for example, Osiel, op cit, at 42511 Evans (Oct., 2002), op cit, at 340 -341

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• To archival evidence conscious of broader contextual matters that mitigate gaps in the

record, including the relationship with the wider literature applicable locally and regionally,

and the impacts of Government policies, frontier cultures and other external factors, as well

as corroboration or contradiction by oral and other forms of evidence.

• Having regad to the genre of the records put before the Courts, including the potential

motivations, standpoint limitations and cuiltural and political perspectives of the recorder.

• In relation to expert evidence, with a consciousness of the relative risks of interpretative

indeterminacy, room for error, and potential inherent subjectivities of witnesses, and the

potential for the adversarial process to truncate testimony.

• In a manner that maintains awareness by judges of their own cultural and political

subjectivities that may affect the inferences they may draw.

The extent to which the claims made in the literature and discussed in this Chapter are equally

acknowledged by the Courts will be considered further in Chapters 7 and 8. The extent that there are

gaps in the subject matter between these sources will provide a useful insight into whether the Courts

already have a bright line test for inferential reasoning or taxonomy for dealing with historically-

sourced evidence.

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Chapter 5 - Challenges for claimant oral evidence

Overview of Chapter 5This Chapter analyses specific issues relevant to Aboriginal and Torres Strait Islander oral evidence.

Its purpose is to identify issues which guide the reception of multiple narratives in the inferential

reasoning aspects of native title determinations.

Part 1 considers the relevant sources of literature for this analysis. Part 2 assesses how the literature

deals with difference of language and non-verbal communications. Cultural differences such as

avoidance of eye contact, silence and unwillingness to answer questions and limits on rights or

abilities to speak is the subject of Part 3. Other cultural issues regarding contrasting methods of

exchanging information, and suggestibility, gratuitous concurrence and scaffolding are addressed in

Parts 4 and 5 respectively.

Part 6 analyses the differing concepts of communicating time, direction and distance. Issues of

speech and hearing impairment and the reliability of memory generally are the subject of Part 7.

Part 8 analyses the consequence of all of these matters and any attendant cultural bias, for the

Court’s ability to draw inferences based on the demeanour of a witness. Finally, Part 9 applies the

analysis of some historiographic issues the subject of Chapter 4 to the need for balance between

archival and expert evidence on the one hand, and claimant oral evidence on the other.

1. Particular considerations for indigenous witnessesThe legal requirements of proof for native title pose additional challenges for native title claimants, in

that they must prove their pre-sovereignty foundations, without the benefit of a documentary archive.

Their orally-based normative system is therefore their main source of evidence to support their

claims.512 As Sutton argues, this requires a process of “cultural translation,”513 in which the Western

Court, accustomed to documentary sources of proof, must accommodate traditional evidence within

its jurisprudence.

In relation to inferences drawn from the oral evidence of Aboriginal people generally and native title

claimants in particular, there are important considerations in the context of the Court arriving at its

overall determination with regard to the evidence as a whole. It is also specifically relevant in relation

to issues of credibility, which have their own place in the broader inferential reasoning processes.

Whilst there is doubt generally about the merits of assessing credibility with reference to witness

demeanour, frankness, equivocation or lack thereof and accuracy on crucial facts,514 there are various

512 Reilly and Genovese, op cit, at 37513 Sutton, P. Native Title in Australia - an Ethnographic Perspective, Cambridge University Press, Cambridge 2003,at 54514 Re, L. “Oral v Written Evidence: The Myth of the “Impressive Witness”” (December 1983) 57 The Australian Law Journal 679 at 681 and 689

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considerations which challenge the appropriateness of this further in relation to indigenous witnesses,

whose appearance in Court “represents a significant culture clash with the result that native title

claims often falter on issues of credibility.”515

These considerations are set out in a number of different forms of literature. Firstly, there is the

general academic and other published works on the topic of cultural considerations for the

assessment of indigenous witnesses.

Secondly, there are the works of government agencies and the commissions of inquiry which have

included in their reports highlights of the cultural factors and challenges that must be had regard to in

the judicial process. The Queensland Criminal Justice Commission’ 1996 report on Aboriginal

Witnesses in Queensland’s Criminal Courts516 is a significant example of this. This report was

prepared in accordance with the then Criminal Justice Commission’s statutory objective of promoting

an effective, fair and accessible criminal justice system. It found that “Aboriginal people appearing in

court as witnesses are often at a disadvantage relative to other witnesses,” and makes

recommendations “aimed at ensuring that courts have the best possible evidence on which to base

decisions and are able to interpret the evidence properly.”517

Thirdly, there are the “Bench Books” adopted in New South Wales,518 Queensland519 and Western

Australia.520 The rationale for these Bench Books is captured in the forward to the New South Wales

version, being that “legal systems throughout the world have come to recognise that both access to,

and the delivery of, justice requires understanding of the sensitivity to the special requirements and

disabilities of particular sections of the community.”521 Its purpose is to provide judicial officers with:

• Statistics and information about the different values, cultures, lifestyles,

socioeconomic disadvantage and/or potential barriers in relation to full and equitable

participation in court prceedings for ... different groups of people.

• Guidance about how judicial officers might neeed to take account of this information

in court - from the start to the conclusion of court proceedings. It provides guidance

only and is not meant to be in any way prescriptive.522

The Queensland Bench Book notes the following as its rationale:

perceptions of inequality can be reduced to some extent by knowledge of what causes them.

Again, this does not require a judge to apply a different law or legal standard according to a

person’s race, gender, impairment, cultural or economic background or any other attributes.

Nonetheless, the assessment of where the truth lies in a particular case can require some

515 Mykyta, S. “Losing Sight of the Big Picture: the Narrowing of Native Title in Australia,” (2005) 36(1) Ottawa Law Review 93 at 121516 Criminal Justice Commission, op cit517 Ibid, at i. Other examples referred to throughout the literature including the Royal Commission into Aboriginal Deaths in Custody.518 Judicial Commission of New South Wales, op cit519 Supreme Court of Queensland, op cit520 Supreme Court of Western Australia, op cit521 Judicial Commission of New South Wales, op cit, at iii522 Ibid, at ix

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understanding of the habits, manners and customs of groups to which particular individuals

involved in the case belong.523

The Bench Books are directed at guidance in relation to various groups of people, including chapters

specifically devoted to ensuring judicial officers have due regard to the cultural and linguistic factors

relevant to traditional owner testimony.

Issues commonly raised across all of the literature are discussed in Parts 2 to 7 of this Chapter.

2. Difference of language and non-verbal communicationAn indigenous witness can’t be assumed to be speaking Anglo-Australian English, as they may have

traditional languages, pidgins or creoles as their first language or may speak another form of

Aboriginal English where words may have different meanings, different tenses and construction of

sentences may apply or sounds might be different. Misunderstandings may arise from a lack of

awareness of the differences and wrongful reliance on apparent similarities.524 This was

acknowledged by the Court in De Rose as follows:

all parties to a dispute and their witnesses [must] be given every reasonable opportunity to

give their evidence in a manner that makes clear the information that the witness wishes to

impart ...In those cases where there may be doubts about the ability of a witness to express

himself or herself in the English language, it is better to err on the side of caution and to

permit witnesses to give their evidence in their first language.525

Second language competency can also be diminished by the stressful environment of the

Courtroom.526 Sign language and gestures are also important for communication in some indigenous

societies, which may go unnoticed by persons who aren’t accustomed to such features of

communications.527

3. Avoidance of eye contact, silences and limits on rights or abilities to speak

In contrast to the Western tradition of assessing honesty and credibility with reference to the witness

“looking the questioner in the eye,” direct eye contact may be considered rude and aggressive in

Aboriginal society (particularly where that person is in authority) and is avoided to demonstrate

politeness and respect.528 Accordingly, the New South Wales Bench Book notes:

523 Supreme Court of Queensland, op cit, at 2524 Ibid, at 83 to 87 and 96; Judicial Commission of New South Wales, op cit, at 2303, Criminal Justice Commission, op cit, at 15-17; Flynn M. & Stanton S, “Trial by Ordeal: The Stolen Generation in Court” (April 2000) 25(2) Alternative Law Journal 75 http://www.austlii.edu.au/au/iournals/AltLawJI/2000/29.html (accessed 10 November 2017); Byrne, J. “Indigenous Witnesses and the Native Title Act 1993 (Cth)” (June 2003) 2 National Native Title Tribunal Occasional Papers Series at 4; Neate in Horrigan and Young, op cit, at 288; Mykyta, op cit, at 123525 [2002] FCA 1342 at [252]526 Supreme Court of Queensland, op cit, at 99527 Ibid, at 89; Judicial Commission of New South Wales, op cit, at 2308; Neate in Horrigan and Young, op cit, at 292 - 294528 Supreme Court of Queensland, op cit, at 88; Judicial Commission of New South Wales, op cit, at 2303 and 2307; Criminal Justice Commission, op cit, at 25; Flynn and Stanton, op cit

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it is vital that no-one in the court allows any culturally-determined assumptions about what

they believe looks trustworthy and what does not to unfairly mislead or influence their

assessment of the credibility or trustworthiness of an Aboriginal person.529

Again in contrast to Western preconceptions, which consider silence may indicate evasiveness,

ignorance or guilt, silence may indicate an indigenous witness is thinking or adjusting to the situation.

It may suggest the witness lacks authority to speak on the topic or in the presence of a particular

person. It may also suggest that the witness does not support the proposition being put, considers the

question has already been answered, or doesn’t understand the question and is too embarrassed to

seek clarification.530 Similarly a response of “I don’t know” may actually suggest a lack of an

appropriate means to provide the information rather than a lack of knowledge.531

An indigenous witness may also be prevented from speaking to or in the presence of some people in

accordance with rules of behaviour based on gender or kinship.532 Certain knowledge may only be

communicated by specific individuals as “[ajuthority is proportional to the ritual knowledge of an

individual and the association between the individual and the sites of ritual significance contained

within his or her country.”533 Neate describes this as an “information economy” in that “[ajccess to

some forms of knowledge is gradually obtained and is jealously guarded ... Although gender, age and

other specifications of knowledge are well attested, the question is not so much what a person knows

but who is entitled to display or perform the knowledge.’’534

Other evidentiary concerns in relation to historical recall in Aboriginal societies and cultures include

bans on calling of the names of dead people, cultural distinctions regarding the appropriateness of

matters for discussion in mixed company, and proscription of the telling of stories about persons one

has not seen and come to know.535 Other forms of knowledge may only be spoken of on country.

These complexities may lead to inappropriate interpretations of reluctance to answer questions.536

The Criminal Justice Commission summarised these issues as follows:

Some information is not freely available to everyone, as only certain people have rights to

particular knowledge. Aboriginal people tend to judge the appropriateness of questioning

according to how, where, when, by whom, to whom, and for what purpose the questions are

being asked. A person’s standing in society and his or her authority to speak are much more

important than whether the person was present at a particular incident.537

529 Judicial Commission of New South Wales, op cit, at 2306530 Supreme Court of Queensland, op cit, at 88; Judicial Commission of New South Wales, op cit, at 2303 and 2307; Eades, op cit; Criminal Justice Commission, op cit, at 23 to 24; Flynn and Stanton, op cit531 Supreme Court of Queensland, op cit, at 93; Judicial Commission of New South Wales, op cit, at 2312. For an example see Jango v Northern Territory [2006] FCA 318 at [294]532 Supreme Court of Queensland, op cit, at 90; Criminal Justice Commission, op cit, at 27; Flynn and Stanton, op cit; Neate in Horrigan and Young, op cit, at 286 - 288533 Cane, op cit, at 129534 Neate in Horrigan and Young, op cit, at 283. Again, for an example see Jango t/ Northern Territory [2006] FCA 318 at [294]535 Sansom, B. “The Brief Reach of History and the Limitations of Recall in Traditional Aboriginal Societies and Cultures” (2006) 76 Oceania 150 at 155 - 156; Criminal Justice Commission, op cit, at 27536 Byrne, op cit, at 2 and 6537 Criminal Justice Commission, op cit, at 19 and 24

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Such challenges may be overcome by the giving of group evidence, the benefits of which Sutton

describes as follows:

It has to do with Aboriginal customary law in relation to truth and proof. It is not a trivial matter;

it is not just that people feel emotionally comfortable to have their family with them and

supporting them, though that’s true too. It’s a matter of how the word is formed in Aboriginal

culture ... it’s a matter of having the proper witnesses to be there so you don’t get out of line,

you don’t go over the mark and so on. These are collectively held laws and facts about things;

these are not private matters.538

Similarly, there may be restrictions on the sharing of relevant information altogether. As the former

Chief Justice of the Federal Court put it:

within the Australian legal system the rights and interests arising from [native title claimants’]

traditional laws and customs will only be protected if sufficient information can be revealed

about them. However, those same laws and customs are part of a knowledge system in which

information and knowledge is restricted and decentralised for the protection and preservation

of those same laws and customs.539

The difficulty this raises is that the concept of “‘secret’ carries a sinister connotation in Western

culture” which can result in suspicion that what is being revealed is recent invention.540 Rose has

describes as a “fundamental disjunction” the distinction “between the Australian legal system which

requires an open and impartial inquiry and an Aboriginal system of law which is embedded in a

culture in which knowledge is organised as intellectual property and is not freely available to all.”541

This then creates an issue for applicants to determine whether their application could succeed without

disclosing the information, which is a balancing act between the benefit of achieving recognition of

native title with the requirement to observe traditional restrictions on disclosure.542 Such issues are

exacerbated in the context of overlapping claims, where the disclosure of information exposes it to

risks of both challenge and appropriation by competing groups.543

Such issues were recognised by Barker J in Banjima People v State of Western Australia (No 2)544

(Banjima), where His Honour noted a need to have regard to the whole of the evidence in context,

“as well as the general status and level of appreciation, and sources of knowledge and perspectives,

of witnesses,” including “what is said [and] what is not said.”545 However, Jagot J’s judgment in

Wyman on behalf of the Bidjara People v State of Queensland (No 2j546 (Wyman) also provides an

example of where the Court was not prepared to infer, on the balance of the evidence, that a lack of

538 Sutton, P. “The relative strengths of oral and written evidence,” Finlayson, J.D. and J.S. Fingleton (eds), Proof and Management of Native Title, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1994 at 22 to 23539 Black, op cit, at 24540 Mykyta, op cit, at 124541 Rose, D.B. quoted in Neate in Horrigan and Young, op cit, at 295542 Neate in Horrigan and Young, op cit, at 297543 Ibid, at 298544 [2013] FCA 868545 Ibid, at [267]546 [2013] FCA 1229. Upheld on appeal in Wyman on behalf of the Bidjara People v State of Queensland [20'\ 5] FCAFC 108

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detail could “be inferred to be the result of cultural sensitivity. The inference which must be drawn is

that the detail is simply not known.”547

4. Contrasting information exchange methodsThe question and answer approach to the exchange of information in the Courtroom is foreign to the

approach of indigenous people who generally approach such a process through use of indirect and

narrative methods and in ways that avoid open disagreement or criticism,548 or pursue information by

“gradually getting to a subject by building an overall picture first, [whereby] personal questions are

only asked when some understanding has been established.”549 Such an approach has been

suggested as having the potential to be socially distressing for indigenous witnesses,550 as singling

out an Aboriginal person for interrogation in front of an audience can cause shame.551 Negative and

“either-or” questioning can be particularly confusing and the answers therefore unreliable.552 Eades

describes the inconsistency between methods as being “the fundamental contradictions between

everyday storytelling and retelling on the one hand, and the expectations and interpretations of

storytelling and retelling in court on the other.”553

Repeated questioning, or as Eades describes it, “the interview,” “is not a speech event found in

traditional Aboriginal societies, and nor is it typical in non-traditional 21st century Aboriginal

societies.”554 As a consequence, Aboriginal people have not been socialised in the same way as non-

Aboriginal Australians to deal with handling a repeated questioning technique.555 The preclusion of

evidence by an uninterrupted narrative by the examination and cross-examination processes, and a

divergence of language, complicates the process and can result in disjointed snippets of

information.556 As Zariski argues:

the process of gaining knowledge across cultures must incorporate less questioning and more

‘telling’ by the other. Rather than risk the distortion of or worse, failure, of the exchange of

meaning and insight which may accompany interrogation as a tool of Western rational inquiry,

we ought to consider letting others speak more for themselves. In principle we must be

prepared to listen more and ask less.557

547 Ibid, at [654]548 Supreme Court of Queensland, op cit, at 90; Criminal Justice Commission, op cit, at 19 and 20; Neate in Horrigan and Young, op cit at 291549 Judicial Commission of New South Wales, op cit, at 2312; According to Palmer, this type of approach is consistent with the methodology adopted by anthropologists, who “seek to obtain data through indirect ways, by listening over a long period of time and by gaining the confidence and trust of those with whom they work.” Palmer (2007), op cit, at 5550 Australian Law Reform Commission, Uniform Evidence Law (ALRC Report 102), 8 February 2006https://www.alrc.qov.au/publications/5.%20Examination%20and%20Cross-Examination%20of%20Witnesses%20/examination-witnesses (accessed 10 November 2017)551 Byrne, op cit, at 4 to 5552 Supreme Court of Queensland, op cit, at 104; Judicial Commission of New South Wales, op cit, at 2312; Criminal Justice Commission, op cit, at 23553 Eades, op cit554 Ibid555 Ibid556 McGrath in McCalman and McGrath, op cit, at 253557 Zariski, A. "The truth in judging: testimony (Fifty bare-arsed Highlanders)" (February 1996) 21(1) A/ternaf/Ve Law Journal ai 27 at 27

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A rigid approach to cross-examination, which restricts responses to yes or no answers and limits the

witnesses’ ability to seek clarification of the question, is culturally and practically problematic for

indigenous witnesses. Cross-examination in particular has the effect of “decontextualizing” a

witnesses’ story, as “parts of the story are often excerpted and questioned in isolation from the rest of

the previous telling.”558 In addition, questioning of volunteered information can be intensely

embarrassing for Aboriginal people.559 Such difficulties with the adversarial system (and limited

English language abilities) were acknowledged by Lee J in Ward, where His Honour identified that

“restricting oral evidence to responses to questions put by counsel left part of the story untold,” and

that the full import of unstated or latent assumptions in questions from counsel “was not understood

by some witnesses and the responses were not directed to issues raised indirectly.”560

A nuance to the adversarial system in relation to claimant oral evidence can be seen in the processes

of the Waitangi Tribunal in New Zealand and the reconstituted Indian Specific Claims Commission in

Canada. In those forums, the cross-examination of indigenous elders has been suspended on the

basis that the authority of the witnesses is already recognised through their designation from their

communities.561

5. Suggestibility, gratuitous concurrence and scaffoldingIndigenous witnesses may be prone to agreeing with propositions put to them, irrespective of their

true agreement or understanding of the proposition. This may be a means of conveying cooperation,

avoiding conflict, signifying the futility of the interrogation process, avoiding admitting a lack of

understanding of the question, just wanting to get things over and done with, or geared towards

establishing or maintaining a relationship which is central to the exchange of information in Aboriginal

culture.562 Particular vigilance for these matters is called for when a witness is subjected to leading

questions in cross-examination.563

Another, similar risk is that of “scaffolding,” which involves the adoption of the wording and

grammatical structure of the questioner, in circumstances where the witness does not have the

language skills to frame a different reply, and which therefore may detract from the reliability of the

response.564

These complexities were identified by Blackburn J in Milirrpum, as follows:

/ have learned from other experience in this Court not to place too much reliance on cross

examination of aboriginal witnesses in which the questions are expressed in terms of anything

558 Eades, op cit559 Criminal Justice Commission, op cit, at 20560 [1998] FCA 1478, at 43561 Johnson in Attwood, Chakrabarty and Lomnitz, op cit, at 113562 Supreme Court of Queensland, op cit, at 90 to 92; Judicial Commission of New South Wales, op cit, at 2312; Eades, op cit; Criminal Justice Commission, op cit, at 21 to 22 and 27; Flynn and Stanton, op cit; Kerr, S. “Gratuitous Justice; a Review of the Queensland Criminal Justice Commission’s Report into Aboriginal Witnesses in Criminal Courts” (Sept 1996) 3(84) Aboriginal Law Bulletin 12 http://www.austlii.edu.au/cqi-bin/viewdoc/au/iournals/AboriqinalLawB/1996/62.html (accessed 10 November 2017); Mykyta, op cit, at 123563 Supreme Court of Queensland, op cit, at 94; Criminal Justice Commission, op cit, at 51564 Supreme Court of Queensland, op cit, at 92; Judicial Commission of New South Wales, op cit, at 2312; Criminal Justice Commission, op cit, at 18

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less than the most extreme precision. The natural courtesy and simplicity of the aboriginal people

tends to make them somewhat easily “led” by a leading question, if by any possibility the terms of

the question are such as to permit agreement with the answer suggested. ...I could not always

attribute to the answers to [the Solicitor General’s] cross examination the weight which I might

have done to the same answers out of the mouths of white men.565

However, Sackville J’s judgment in Jango provides an example of circumstances in which the Court is

not willing to accept a situation of gratuitous concurrence. His Honour distinguished between

acknowledgment of the “need to take account of barriers to communication in assessing evidence”

from a disregarding of “the evidence of indigenous witnesses unfavourable to the applicants’ case

because of what is said to be the phenomenon of ‘gratuitous concurrence’.”566

6. Different conceptions of time and placeAboriginal culture differs from Western approaches to knowledge in that it encompasses different

conceptions of time (being timeless and cyclical/a continuum, rather than linear), place orientation,

spatial arrangements and directions. Indigenous witnesses may prefer to specify details as lists or

descriptions of geographical, climatic or social matters, rather than specifically quantifying matters.

Approaches to numbers, dates and times and distances may therefore seem vague, inaccurate or

inconsistent to someone from a different background.567

Gara notes that Aboriginal histories reflect different perspectives of history, time and causation.568

That author quotes Attwood, who argued that Aboriginal oral history “assumes a conjunction between

present and past, that the past is something which is fluid and shifting and so amenable to

intervention, and has an inevitable subjectivity as people seek to establish meaning for the past in the

context of the present.”569 In such histories, time has less relevance and place is the real focus, “as

patterns of behavior and particular events are described in a continuum in relationship to land

sites.”570 It is this timelessness that distinguishes Aboriginal history from the linear Western paradigms

of history, as “according to the principles of reincarnation, with animals, people, spirits constantly

resurfacing on the land. Aborigines postulate that tradition is constant. ... this stance is ... both a legal

code and historiology.”571

The Courts have also noted such concerns. This includes the judgment of Mortimer J in Dempsey on

behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2)572

(Dempsey), who stated in relation to spatial arrangements it was inappropriate to expect “connection

to be expressed by reference to boundaries corresponding to lines in maps,” and that:

565 (1971) 17 flr 141 at 179566 [2006] FCA 318 at [298]567 Supreme Court of Queensland, op cit, at 93; Judicial Commission of New South Wales, op cit, at 2312; Criminal Justice Commission, op cit, at 25 to 26; See also Choo in Toussaint, op cit, at 198568 Gara in Paul and Gray, op cit, at 79569 Attwood, B. quoted in ibid570 McGrath in McCalman and McGrath, op cit, at 255571 Ibid, at 246572 [2014] FCA 528

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Indigenous claimants may describe their country by reference to geographical and topographical

features, to seasonal changes in the land or to shared boundaries with other groups spread

across a swathe of land which cannot be identified in the way non-indigenous people might

identify a fence line.573

7. Speech, hearing and memory impairmentIndigenous populations are frequently more affected by symptoms of hearing loss and speech

impediments, which have obvious implications for an affected witness in being able to effectively and

efficiently participate in the Court process.574

As in any methodology involving capacities of human memory, reliability issues may arise, as

recollections may be shallow, exaggerated, distorted, based on misunderstandings or re-interpreted in

accordance with changed understanding.575This may be exacerbated given the room for distortion

increases with distance from an event,576 and where the knowledge may have been gained by

reference to the historical record itself through the involvement of claim group members in the

preparation of the claim.577

Evidence may also be affected by conventions of revision of history by elders acting as keepers of the

culture to erase “irregularities in consequential matters such as succession to land or the take-over of

the country of one group by another;” and that the “recounted past must be a reminiscence that

positively affirms the realities of the present.”578

Such evidence may therefore be vulnerable to challenge, as being “notoriously malleable and so

unreliable.”579 For such reasons, Clendinnen sounds a cautionary note:

My own sense is that the possible social and political consequences of elevating any bundle

of memories to unchallengeable sacred status are simply too momentous and too

unpredictable to allow that kind of restraint-from-criticism ordinance 580

There are various examples of such concerns being noted by the Courts. Merkel J in Commonwealth

v Yarmirr58'1 (Yarmirr FC) noted that the “spoken word is understood as being susceptible to

modification over time as it is retold from one person to another.”582 Callinan J in the Yorta Yorta HC

noted similarly that the spoken word passed down from forebears:

573 Ibid, at [131]574 Supreme Court of Queensland, op cit, at 94; Judicial Commission of New South Wales, op cit, at 2303; Criminal Justice Commission, op cit, at 28575 Gara, in Paul and Gray, op cit, at 79576 McGrath in McCalman and McGrath, op cit, at 259577 Petersen, N. “Organising the anthropological research for a native title claim,” in Burke, P. (ed), The Skills of Native Title Practice - Proceedings of a Workshop, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1995, at 14-15; Palmer (2011), op cit, at 5578 Sansom, op cit, at 155 - 156, with reference to Morphy, H. “Myth, totemism and the creation of clans,” Oceania, 60, 312 - 28579 Attwood, B. quoted in Kennedy, R. “Stolen Generations testimony: trauma, historiography, and the question of truth” (2001) 25 Aboriginal History 116 at 119; Johnson, M. "Honest acts and dangerous supplements: Indigenous oral history and historical practice in settler societies” (2005) 8(3) Postcolonial Studies 261 at 270; Attwood, B. “The Stolen Generations and genocide: Robert Manne’s In denial: the Stolen Generations and the Right” (2001) 25 Aboriginal History 153 at 168580 Clendinnen, op cit, at 44581 [1999] FCA 1668582 Ibid, at [348]

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is at risk of being influenced and distorted in transmission through the generations, by, for

example, fragility of recollection, intentional and unintentional exaggeration, embellishment,

wishful thinking, justifiable sense of grievance, embroidery and self-interest.583

Similar issues arise in relation to the extent to which memory of such matters is as a result of their

maintenance as traditional laws and customs, or whether such matters have merely been learned

about by other means. In Bennell, Wilcox J identified a “resurgence of interest in Western Australian

Aboriginal history and tradition” as posing a particular need to treat with caution the contemporary

claimant oral evidence regarding group identity.584 Similarly Jagot J in Wyman inferred that the

normative society “effectively ceased to exist until attempts were made to revive it from 2006 onwards

as part of the native title claim,”585 and that the transmission of language amongst witnesses from a

competing claim group could not be inferred to be by traditional means, but rather by access to a

book published on the subject.586

8. Consequences of and means to accommodate cultural factorsWhere these factors are not given sufficient account in the trial process, the New South Wales Bench

Book notes that Aboriginal people may feel uncomfortable, resentful, fearful, overwhelmed or

offended; not be adequately understood or able to convey their point of view and/or understand what

is happening; feel the subject of injustice; and may be treated unfairly or unjustly.587 In this sense,

O’Loughlin J identified in De Rose that unclear or confusing evidence may have been a result of the

“apparent discomfort of witnesses in the context of formal court proceedings.”588

A key to ensuring these factors are adequately accommodated is through judicial care not to let

stereotyped views about Aboriginal people unfairly influence judges’ assessments and the

assessments of others in the Court process.589ln this regard, the Criminal Justice Commission quotes

former Victorian Supreme Court Judge, the Honourable Richard McGarvie, as follows;

/ consider that Australian judges do their difficult and responsible work very well. It is

undeniable though that they are better equipped to do it when dealing with persons so similar

that they can fairly infer how it feels to be that person. But what does a white judge know how

it feels to be an Aborigine?590

Other means of accommodating these factors is to consider the legal norms, being the rules of

evidence and procedure that regulate testimony and evidence tendered to a judge during a hearing.591

As Connolly argues, “the epistemic conditions which obtain at a legal hearing (including the legal

norms regulating those conditions) [may]... be entirely non-conducive to the judicial acquisition of any

583 [2002] HCA 58 at [143]584 [2006] FCA 1243 at [449]585 [2013] FCA 1229 at [621]586 Ibid, at [664]587 Judicial Commission of New South Wales, op cit, at 2206588 [2002] FCA 1342 at [249], [428] and [804]589 Judicial Commission of New South Wales, op cit, at 2314590 McGarvie, R. quoted in Criminal Justice Commission, op cit, at 31591 Connolly, op cit, at 193

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or all culturally different concepts or entirely conducive to such acquisition, or merely to some degree

conducive or non-conducive to such acquisitions.”592 That author rejects the suggestion that the

possession or acquisition of a culturally different concept is theoretically impossible (the “radical

cultural incommensurability thesis”),593 but notes that limits of judicial concept acquisition may occur

by virtue of regulation by legal norms.594

Connolly recommends culturally specific judicial education and selection factors as a means to

enhance the epistemic conditions needed for adequate conceptual acquisition.595 He also highlights

the need for interpreters who also perform “a more general explanatory role as mediators and

facilitators of communication between culturally different witnesses and the judge and other agents

involved in the hearing.”596 This is also a role which may be played by anthropologists, as identified by

Sackville J in Jango. In that case, His Honour noted the difficulties claimant witnesses confronted in

providing full and coherent testimony, not due to a lack of knowledge or understanding but rather their

not being accustomed to expression suited to a courtroom and difficulties of translation from the

Western Desert dialects.597

Connolly also argues for the uptake of the various alternative evidentiary and procedural measures

available to the Court, as outlined in Part 4 of Chapter 1, including:

• “Cooperative legal mechanisms” which establish a “context within the hearing process which

mitigates the extent of any breach of secrecy posed by the giving of sensitive information by

imposing strict limits upon the extent of the actual and potential dominant societal (or

minority) audience from such information."598

• On-country hearings, which “may improve a judge’s sensory and cognitive access to relevant

real evidence of culturally different concepts - geographical locations, natural objects,

performance of culturally different actions,” as well as providing a more relaxed and

informative forum and avoiding challenges such as the need to have reference to “maps

which may have no meaning to the claimants and which cannot begin to reflect their

relationship to country.”599

• Alleviating the effects of or potential for aggressive cross-examination, such as the giving of

evidence in groups, and the adoption of a more inquisitorial mode so as to “render the judicial

interpretive and epistemic role more effective.”600

592 Ibid, at 194593 Ibid, at 165594 Ibid, at 197595 Ibid, at 199-201596 Ibid, at 205. See also Neate in Horrigan and Young, op cit, at 288 - 290; Supreme Court of Queensland, op cit, at 98 - 101; and Judicial Commission of New South Wales, op cit, at 2309597 [2006] FCA 318 at [292]; See also Jagot J’s judgment in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [474]598 Connolly, op cit, at 206599 Ibid, at 208 - 209. Sackville J in Jango v Northern Territory noted examples whereby the “contrast between the demeanour of witnesses when testifying in the courtroom and when giving evidence more informally on-country was sometimes striking” - [2006] FCA 318 at [296]600 Ibid, at 203 and 2011. See also Neate in Horrigan and Young, op cit, at 285 - 286

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9. Balancing the archive and experts with oral evidenceThe extent to which oral or documentary evidence should be afforded greater weight is the subject of

significant debate throughout the History Wars and associated literature. Edmond argues there is a

“legal colonisation of anthropology ... evidenced most graphically in the way anthropologists, and

other expert witnesses, enable Aboriginal voices to be ‘silenced’ and marginalized” and as a

consequence “[mjost of the leading native title and heritage protection judgments devote considerably

more space to the evidence of anthropologists, historians and archaeologists than the evidence of

Aborigines” whose evidence they have “genuine difficulty comprehending and incorporating.”601

At one end of the scale in this debate is Windschuttle, who is critical of “Aboriginal oral history, when

uncorroborated by original documents” posing the potential for “legends, myths and prejudices of any

culture [to] become legitimate.”602 Alternatively, Litchfield argues that “’judicial authority’ would be

better grounded if it was thought of as defaulting neither solely to the written nor the spoken word, but

the outcome of conversation that draws on both documents and oral histories.”603 Such an approach

creates a role for archival evidence and expert witnesses to either corroborate and augment (for

example, by providing evidence of genealogies that are beyond recall by memory) or contradict the

oral histories of claimants.604 At the same time, there may be a role for oral testimony in

supplementing and correcting the written record, to preserve the opportunity for the Court to have

regard to multiple perspectives of the past.605

Ritter describes the corroborative opportunities available to the Court when considering the evidence

as a whole, whereby anthropologists can infer an identifiable native title group, whilst historical and

oral evidence can take such matters further to infer the causes of actual events such as preservation

of territory, resources and culture, to evidence continuity of connection.606 There are also suggestions

corroborative approaches to claimant testimony and archaeological inferences and reconstructions

can assist the Court in the proof of native title, particularly where unbiased historical evidence is often

lacking, such as for areas of occupation including fringe camps, station camps and mission sites.607

Strelein argues that by giving weight to claimant oral evidence, the Courts are in the position to

reconsider the objectivity of the archive and accommodate alternative worldviews which acknowledge

and address cultural bias across competing modes of evidence.608 Other writers have suggested

claimant evidence gives Courts the opportunity to assess the whole of the evidence through a

“bicultural history,”609 rather than through the “anti-intercultural bias in the legal doctrine.”610

601 Edmond (2004), op cit, at 220602 Windschuttle in Attwood and Foster, op cit, at 106 and 107603 Litchfield, op cit, at 15604 Gray in Paul and Gray, op cit, at 32; Curthoys and Genovese in McCalman and McGrath, op cit, at 86; Barker in Toussaint, op cit, at 162 and 175605 Attwood, B. “In the Age of Testimony: The Stolen Generations Narrative, “Distance” and Public History,” in Attwood, Chakrabarty and Lomnitz, op cit, at 79 - 80606 Ritter, D. “Whither the Historians? The Case for Historians in the Native Title Process” 1999 4(17) Indigenous Law Bulletin 4 at 5607 Roberts, A. “Using Archaeology as evidence” (February 2001) 26(1) Alternative Law Journal 41 at 41608 Strelein (2000), op cit609 Williams, op cit at 236610 Burke (2011), op cit, at 269

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However, the prevalence of respondent reliance on documentary evidence may be exacerbated

because claimants do not ordinarily permit the respondents in native title claims to undertake pre-trial

oral history research in their communities. In these circumstances, the Crown and other respondents

have little choice other than to rely on the archive and the pre-claim era ethnographic record.611

The relevant literature pays particular attention to the differing approaches taken by the Courts to the

weight afforded oral evidence vis-a-vis other modes of evidence, particularly across the varying

approaches taken in Yorta Yorta, Yorta Yorta FC, Yorta Yorta HC, and Ward. According to Ritter, the

differences in approach reflect “different historiographical traditions.”612

Various authors are critical of Olney J’s preference for the archive over oral evidence, and His

Honour’s approach of assessing the original character of traditional laws and customs as at

sovereignty and henceforth having to be maintained. Hausler argues that Olney J’s willingness to infer

truth from the written archival material was one of the best cases for demonstrating how a Court may

err in its judgment by not giving equal weight to claimant oral evidence and written evidence.613 Olney

J’s approach also influenced his findings in relation to whether a practice is representative of invented

rights and interests or continuity through evolved rights and interests.614 In so doing, Broome argues

“Olney’s reliance on the writing of white settlers of the nineteenth century, led him to adopt a static

view of culture.”615

The approaches of Black CJ in the minority in Yorta Yorta FC and Lee J in Ward differ widely from

that of Olney J in Yorta Yorta. Black CJ’s starting point is the traditional laws and customs currently

observed which define the community living under them, form the basis of native title rights and

interests where that community can identifiably trace its existence back in time.616 As a consequence

"records of the past (whether textual or orally transmitted), will not be regarded as foundational for

native title.”617 According to Carter, Black CJ’s approach to dealing first with the evidence of living

witnesses about the continuance of traditional practices opened the way for the Court to take a

broader approach and consider “evidence from, an extensive period of time, reasoning that a discrete

historical inquiry makes it impossible to determine whether a change is simply an evolution or

adaptation, or represents a complete interruption.”618 This approach thereby created “a broader base

for drawing inferences of continuity.”619

Mykyta is critical of Yorta Yorta HC in that, notwithstanding an acknowledgment that written evidence

is not “inherently better or more reliable than oral testimony on the same subject,”620 Their Honours’

suggestion that Olney J did not proceed from this impermissible premise is contrary to the exact

words of Olney J’s judgment.621 That author therefore calls this out as an inherent prejudice in

611 Ray in McCalman and McGrath, op cit, at 102 -103612 Ritter in Paul and Gray, op cit, at 88613 Hausler, op cit, at 62; See also Ketley and Ozich, in Choo and Hollbach, op cit, at 88; and Hemming in Paul and Gray, op cit, at 54614 Ray in McCalman and McGrath, op cit, at 106615 Broome, op cit, at 263616 Litchfield, op cit, at 17617 Ibid, at 18618 Carter, op cit619 Ibid620 (2002) 214 CLR 422 at [63]621 Mykyta, op cit, at 122

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Western legal systems, and calls for the High Court to “set guidelines for lower courts as to how they

should approach oral history evidence and the challenges peculiar to Indigenous witnesses in a

non-lndigenous legal system.”622

Reilly and Genovese are critical of the majority in Yorta Yorta FC, Branson and Katz JJ, who were

prepared to leave standing an approach to assessing the historical evidence that was theoretically

flawed, and similarly of the leading judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta

HC which failed to address the questions of historical theory central to Black CJ’s reasons for allowing

the appeal.623 In contrast, those authors praise the approach for proof of native title taken by Gaudron

and Kirby JJ in Yorta Yorta HC, who held that how traditional laws and customs were observed was

irrelevant once claimants establish a connection to the land, thereby de-emphasising the need for the

courts to make an assessment of conditions in the past.624

In contrast to Olney J and the various majority judgments in Yorta Yorta FC, Lee J in Ward gave

primacy to the oral history evidence of the claimants, and used documentary historical evidence only

“to provide context in which to understand and evaluate” the oral evidence.625 Lee J also adopted a

similar approach for assessing the traditional nature of law and custom, with regard to whether or not

current laws and customs were “rooted in the past” rather than whether past laws and customs

continued to exist.626 Reilly says that Lee J’s attribution of prominence to oral tradition over the written

record enabled the Court to dismiss historical accounts of dispossession (and thus lack of

continuity).627 As well as diminishing the emphasis on historical enquiry in native title claims, Ketley

and Ozich argue this approach is both less ethnocentric and better allows for change in laws and

customs since sovereignty provided the general nature of the connection remains.628

Various authors suggest that the approaches of Black CJ in the Yorta Yorta FC and Lee J in Ward

now have or will ultimately be accepted to have pre-eminence in native title jurisprudence.629

10. Conclusion to Chapter 5This Chapter analysed specific issues relevant to the oral evidence of Aboriginal and Torres Strait

Islanders, with a view to identifying key issues relevant to the reception of multiple narratives in the

inferential reasoning process in native title trials.

622 Ibid, at 120 and 122623 Reilly and Genovese, op cit, at 28 and 29624 Ibid, at 30 and 31625 Ketley and Ozich in Choo and Hollbach, op cit, at 90; Curthoys and Genovese, op cit, at 89; Reilly (2000), op cit, at 460 and 469626 Ketley and Ozich in Choo and Hollbach (2003), op cit, at 93627 Reilly (2000), op cit, at 459628 Ketley and Ozich in Choo and Hollbach (2003), op cit, at 90 - 93; Reilly, op cit, at 460620 Litchfield comments that the approach advocated by Black CJ may retain some authority, as “there was nothing in Chief Justice Black’s methodological prescriptions that were disagreed with by majority” - Litchfield, op cit, at 16. The relevant comment from Branson and Katz JJ was limited to the observation that the claimants’ submission that whether a law or custom is traditional is a subjective test "would, it seems to us, leave considerable scope for the rewriting, perhaps unintentionally, of history."[2001] FCA 45 at [126]. See also Keon-Cohen and Seidel in Bauman and Click, op cit, at 249; and Ketley and Ozich in Choo and Hollbach (2003), op cit, at 93, with reference to Commonwealth v Yarmirr[200'\] HCA 56 at [69]

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Its finding, for the purposes of the content of the Inference Guidelines and the answer to Research

Question 1 to the extent it relates to special considerations regarding oral evidence of Aboriginal and

Torres Strait Islander peoples, is that:

• The reliability of such evidence should be considered biculturally, cognisant of the linguistic

and cultural factors that impact on claimant oral evidence.

• In particular, the Court should ensure potential cultural biases do not colour inferences that

may be drawn from the demeanour of an indigenous witness, including inferences of

credibility or otherwise, having regard to differences in language and non-verbal

communication; lack of eye contact and prolonged silences; limits on rights and abilities to

speak amongst individuals; suggestibility, gratuitous concurrence and scaffolding; different

conceptions of distance, direction and time; speech and hearing impairments; and potential

weaknesses relating to memory (including the potential for distortion over time and

confirmation bias).

• In addition, the weight of oral evidence of claimants should not be subjugated to that of other

forms of evidence based on any epistemic preferences of the Courts, and should be afforded

the level of importance discussed in Chapter 1, having regard to the overall evidentiary

landscape as discussed in Chapter 8.

• With reference to all of the above, Courts should consider if alternative evidentiary and

procedural approaches might alleviate the disadvantages that may otherwise be suffered by

indigenous witnesses by way of inferences drawn from demeanour, credibility and

inconsistencies in testimony.

In relation to Research Question 2, regarding the extent to which the Courts have already developed

informal guidelines for inferential reasoning, it will be seen in subsequent Chapters that the Courts

have a reasonable level of consciousness that Aboriginal and Torres Strait Islander people generally

are subject to disadvantages in the adversarial system. However, it is also apparent that there are

only isolated instances of familiarity with the specific aspects of the matters analysed in this Chapter

across the native title jurisprudence. This analysis therefore also forms an important input to the

findings on that research question, as well as the relevant considerations for inclusion in the Inference

Guidelines.

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Chapter 6 - Theories of inference in the judicial context

Overview of Chapter 6The purpose of this Chapter is to provide an analysis of general evidentiary theories, to draw out

aspects of these that directly relate to inferential reasoning of the Courts. This involves a review of the

limited literature that addresses how inferences are or may be appropriately drawn in the adjudication

process.

Part 1 of this Chapter involves a consideration of why inferential reasoning is necessary in the judicial

process. Part 2 provides an assessment of various principles of logic - deduction, induction and

abduction - and how these are relevant to Court processes. Part 3 outlines techniques proposed to

add rigour and confidence to the inferential process identified in seminal texts, with particular

reference to the work of John Henry Wigmore and other authors who have built on Wigmore’s

approach.

This is followed in Part 4 with an analysis of specific theoretical issues such as the role for

generalisations, “common sense” and background knowledge in inference drawing. Part 5 analyses

an approach to inference which is specifically cross-cultural. Part 6 sets out an overview of perceived

deficiencies in mathematical approaches to probability in the Courtroom setting. Alternative

“explanatory” approaches to selecting “best” inferences, and other contemporary theoretical

approaches are then the subject of Parts 8 and 9 respectively.

1. The need for inferenceSimilar to the social sciences and the humanities, the role and process of inference has been

recognised and discussed in various legal commentaries (although perhaps, not to the same extent).

The key driver is a symptom of the standards of proof applied by the Courts - in both criminal and civil

proceedings the Courts are not, and of their nature never can be, restricted to findings of absolute

truths and facts. By virtue of the Court (whether judge or jury) having to determine matters without

either the benefit or the requirement for certainty, facts will be found proven based on probability

considerations alone, and inferences may be drawn from such proven facts again on the basis of

assessments of what is more probable. “Probability” is explained by James as being:

not an actual state. Nothing really is probable. It is true or false. Probability is a matter of

appearance. Apparent probability is always relative to the data available at the time judgment

is exercised. If all possible data were available we should be dealing not with probability in an

ordinary sense but with the approximation of certainty.630

630 James, op cit, at 698 fn 20

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Issues of probability arise “because courts have limited materials on the basis of which to decide what

happened,” the result of which is that the Courts must determine both the probabilities based on the

limited material available to it, as well as “whether that limited material is sufficient to base a

reasonable decision.”631

Inferences are made necessary by the same issues raised in Chapter 4 - the evidentiary record may

not be set out in its totality and in perfect detail, and matters which satisfy elements necessary to

prove or respond to a matter may fall within the gaps of such a record. As Anderson, Schum and

Twining argue (in a statement apt to respond to many of the assertions raised in the History Wars

discussed in Chapter 4), “[t]he skepticism of the disappointed perfectionist has little value in a system

that is explicitly based upon standards that require only less than perfect proof.”632 Similarly

Ligertwood and Edmond acknowledge, a “definitive correspondence between knowledge and the

physical world is an impossible ideal,” and accordingly, Courts “can only strive for that knowledge in a

rational and orderly way.”633 Inference is central to this process, to determine material facts to “varying

degrees of likelihood or probability.”634

The use of inference raises the need to distinguish between direct and circumstantial evidence.

Twining draws on the works of Jeremy Bentham, to make and signify this distinction, as follows:

The main significance of the distinction relates to the nature of the logical processes involved:

Where all the evidence is direct ‘the case is such as affords not room for any special

inference: for any other inference than that general one ... with direct evidence the form of

inference is: ‘From W’s statement “Y exists” we infer that Y exists’. ... With circumstantial

evidence there is at least one additional step: ‘From Ws statement ‘‘X exists, ” we infer that X

exists; from the proposition ‘X exists” we infer that Y exists’... There is a ‘chain of facts’, with

at least two inferences involved.635

In this respect, Heydon argues “[n]o useful purpose is served by comparing the merits of direct and

circumstantial evidence.”636 He also argues:

If the only classes of evidence that could be given of facts in issue were testimony, admissible

hearsay, documents and things, many claims would fail from want of adequate proof. ...At

some stage resort almost always has to be had to ‘‘circumstantial evidence, ” which may be

defined as any fact (sometimes called an “evidentiary fact;” “factum probans” or “fact relevant

to the issues”) from the existence of which the judge or jury may infer the existence of a fact

in issue (sometimes called a “principal fact” or “factum probandum”).637

631 Hodgson, D.H. “The Scales of Justice: Probability and Proof in Legal Fact-Finding,” (1995) 69 Australian Law Journal 731 at 733 to 734632 Anderson, Schum and Twining, op cit, at 103633 Ligertwood and Edmond, op cit, at 7634 Ibid, at 8635 Twining, W. Theories of Evidence: Bentham and Wigmore, Stanford University Press, Stanford, 1985, at 33, with reference to Mill, J.S. (ed), Rationale of Judicial Evidence, 1827636 Heydon, op cit, at 16637 Ibid, at 15

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Taking these points further, in what Pardo claims is “orthodoxy in evidence scholarship,” that author

has identified the following factors that drive the need for inferential reasoning by Courts:

• Epistemological factors - so as “to regulate the evidentiary inputs and reasoning processes

at trial in ways that lead to more reliable, better justified, and ultimately more accurate

decisions.”

• Economic factors - “because of limited time and resources, the economic costs of any

procedure must be considered, and compared with, any epistemological benefits the

procedure may bring.”

• Moral factors - in that “certain parties will suffer the consequences of factual errors and the

legitimacy of the state’s authority is bound up with how the law allocates the risks of these

errors.”638

Stein makes a similar assessment, arguing that setting probability thresholds is a matter of allocating

risks of error, which is done in civil trials with regard to considerations of cost efficiency and equality of

apportionment (for example, by ensuring admissibility of evidence only if it “unfolds itself to

individualized scrutiny and the consequent adverse utilization,” and by only excluding evidence where

the risk to one party of doing so is matched by the risk to the other that it may distort the truth639), and

which is a “distinctively moral choice.”640 He makes this argument as “trials cannot derive from judicial

forecasting of the success or failure of the ongoing scientific evolution or revolution.”641 Accordingly,

“[ijnferences more compatible with equality in risk-allocation should trump any competing

inference.”642 This allocation of risk approach fills the gap given probabilistic judgments do not

constitute justified true beliefs, in the epistemic sense.643 It is also a criteria that makes the legal

context unique and distinct from other disciplines that aspire to the discovery of the truth.644

Anderson, Schum and Twining provide two further useful preliminary points on inferential reasoning in

the legal process. Firstly, they distinguish between inference and proof, in that inference is the

process, by virtue that it “represents an argument or a claim that there is a logical relationship

between two propositions, that one proposition supports the other,” whilst proof (or lack thereof) “is

the result - the conclusion to be reached after the inferences have been evaluated.”645 Secondly,

those authors argue that law only differs from other disciplines, which all have largely shared

problems of evidence and inference, to the extent that “substantive law defines the hypotheses to be

tested, the propositions to be proved, and formal rules regulate the manner in which cases are

prepared and the admissibility of use of evidence.”646

638 Pardo, op cit, at 4639 Stein, op cit, at 105 and 131640 Ibid, at 121 and 197641 Ibid, at 197642 Ibid, at 238643 Pardo, op cit, at 4644 Pundik, A. “Epistemology & The Law of Evidence: Four Doubts about Alex Stein’s Foundations of Evidence Law,” The Foundations of Evidence Law conference, Hebrew University of Jerusalem, 6 November 2006645 Anderson, Schum and Twining, op cit, at 94646 Ibid, at 46-47

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2. Deduction, induction and abductionA useful starting point in considering theories relevant to inferential reasoning is to distinguish

between the relevant principles of logic that may be drawn upon in a fact-finding process, namely

deduction, induction and abduction. These are the principles called upon to rationally justify decisions

regarding disputed questions of fact.647

Deductive argument is the “form of argument in which a major premise is applied to a minor premise

to establish that a conclusion is valid. In evidential reasoning, the major premise may be a proposition

of law or, more often, a generalization.”648 This form of argument would very rarely give rise to

material inferences from uncontested premises.649 Deduction is generally not the subject of judicial

approaches to inference because it is reliant on the truth of all premises for the conclusion reached to

be true - it is not directed at accommodating margins of doubt or probability.

Alternatively, inductive argument is:

an argument that one proposition (taken as established), a factum probans, makes another

proposition in the case, a factum probandum, more or less probable than it otherwise would

be. The argument is frequently by analogy and almost always rests upon an assumed

generalization upon whose acceptance the strength of the argument depends.650

Inductive inferences take a number of forms, with abduction the most prevalent in the trial process.651

Abductive reasoning, also known as “inference to the best explanation,” is “a creative process of

using known data to generate hypotheses to be tested by further investigation.”652 Abduction is an

exercise of common sense logic, which is “ubiquitous at or near the surface of typical arguments

offered in judicial and scientific contexts and in ordinary life.”653 The abduction questions for the

lawyer is “[wjhat hypothesis might account for these data that would be consistent with a result that

would advance (or protect) the client’s interests?” and “[c]an the data be marshalled to provide

compelling support for the inferred propositions necessary to the client’s success in the case at

hand?”654 Anderson, Schum and Twining argue the role of the lawyer in using abductive reasoning is

to construct hypotheses to satisfactorily account for the available data and to discover sources of

additional evidence to test these, as well as identify the bases upon which an opponent may seek to

explain away assertions based on their own evidential data.655 Those authors distinguish between the

role of abduction and induction in the inferential process during a trial, in that:

Abduction is critical in the early stages, when there remains time for investigating the

possibilities before committing to a specific theory on which the case will be tried. Induction

647 Ibid, op cit, at 98648 Ibid, at 381649 Pardo and Allen, op cit, at 227650 Anderson, Schum and Twining, op cit, at 383651 Pardo and Allen, op cit ,at 228652 Anderson, Schum and Twining, op cit, at 379653 Josephson, J.R. “On the Proof Dynamics of Inference to the Best Explanation” (2001) 22 Cardozo L Rev. 1621 at 1621 and 1641654 Anderson, Schum and Twining, op cit, at 98 and 99655 Ibid, at 98 and 99

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becomes central when the possibilities have been identified and explored and the data are as

complete as is feasible.656

3. Wigmore's narrative and chart methodsA number of contemporary authors have made reference to the works of John Henry Wigmore as the

starting points for their analysis. Twining suggests that Wigmore believed that the appropriate

approach to inferences in judicial proof should be based on “the principles of sound reasoning and

practical decision-making in everyday life” which involves “a fairly straight-forward application of

simple principles of induction.”657 That author summarises Wigmore’s approach to analysing evidence

and making detailed inferences as involving two methods, the narrative method and the chart method.

In relation to the former, this “rearranges all the evidential data under some scheme of logical

sequence, narrating at each point the related evidential facts, and at each fact noting the subordinate

evidence on which it depends; concluding with a narrative summary.”658

The latter results in a diagrammatic presentation of the relations between all relevant evidence and

ultimate probanda. Common to both is a logical scheme that studies relations between propositions to

be proved (factum probandum) and the supporting proposition (factum probans)659 These often

involve a series or chain of inferences, or inferences upon inferences, because the same propositions

can be both factum probans and a factum probandum (a situation that Twining states is very common

in judicial trials).660 661 There is room for doubt at each stage of this reasoning, resolved with reference to

“common sense” to identify the vulnerable aspects, through a test of:

Does the evidentiary fact point to the desired conclusion (not as the only rational inference

but) as the inference (or explanation) most plausible or most natural out of the various ones

that are conceivable? Or ... is the desired conclusion (not the most natural, but) a natural or

plausible one among the various conceivable ones? After all the other evidential facts have

been introduced and considered, the net conclusion can be attempted.66''

Ligertwood and Edmond draw on Wigmore’s chart method to set out the following steps that may be

carried out by judges in a trial process where inferential reasoning is to be applied:

(a) Assumption - the starting point is to assume there is a logical relationship between evidence

and conclusions of fact.

(b) Isolation of information experienced and facts to be established - factual conclusions to

be inferred are those alleged material facts (contended by a party as a factual hypothesis)

which would justify a certain determination by the Court. Precision is required as to which of

656 Ibid, op cit, at 99657 Twining (1985), op cit, at 121658 Ibid, at 125, with reference to Wigmore, J.H. Principles of Judicial Proof, as given by logic, psychology and general experience (1st ed), Boston,1913659 Twining (1985), op cit, at 126660 Ibid, at 127661 Ibid, at 127 and 128

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such facts (including series or compounds of facts) require ultimate discovery. Which material

facts will be in issue will depend on what line is taken by the respondent or defendant parties.

(c) Articulating logical steps to be taken if facts follow from evidence - this step is a

process of inferring intermediary facts, from which further inferences are drawn until the

ultimate facts can be regarded as discovered through a series of inferences. Such steps

involve the following two kinds of inferences:

• chains of inferences (or catenate inferences); and

• inference of one fact from a number of other separate facts (or converging or

corroborative inferences).

(d) Consider individual chains - each individual chain of inference should be considered to

determine support for a factual conclusion or a rival factual conclusion.

(e) Consider convergence of separate explanatory chains - individual chains should be

considered together to assess the relationship between the evidence and the inferred

conclusion. Alternative explanations can be assessed by contrasting these against each

other.

(f) Probability - the combination of inferences is then assessed having regards to concepts of

probability.662

Elements ofWigmorean approaches are applied by Anderson, Schum and Twining, to identify the

following five concepts which they argue are central to using inference in reaching an ultimate

probandum:

• Conjunction - to succeed at trial, one party may have to establish each of several facts in

issue, and the other party may only need to establish one alternative to a fact in issue. They

argue “the ultimate probandum may include alternative conditions, disjunctive penultimate

probanda, such that the proponent need only establish one of the alternatives” in order to

succeed.663

• Compound (or complex) propositions - “an intermediate probandum may also contain a

number of elements, each of which is supported by separate evidence,” in which

circumstances logic “specifies necessary, but rarely sufficient, conditions that must be

satisfied.”664

• Convergence - where two items of circumstantial evidence independently support the

probability of the same conclusion, and therefore converge to strengthen the inference. In

such circumstances, the inference is only as strong as “its constituent parts and must, in

some sense, be weaker where the evidence leaves ground for doubt about each of the

parts.”665

662 Ligertwood and Edmond, op cit, at 8 - 13, with reference to Wigmore, J.H. The Science of Judicial Proof (3rd edition), Little Brown and Co, Boston, 1937663 Anderson, Schum and Twining, op cit, at 103 and 104664 Ibid, at 104665 Ibid, at 106 to 107

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• Corroboration - similar to convergence but focused on credibility in circumstances where

two witnesses independently testify to the proof of a proposition.666

• Catenate inferences - chains of inferences, “when there is more than one step in the

reasoning necessary to show the relationship by which a probans supports a probandum." To

achieve this “the lawyer should seek to identify every condition that may give reason for doubt

about the claim that probans A supports probandum B. Each ground that raises a plausible

basis for doubt indicates that there is a necessary step in the inferential chain that should be

examined.”667

Those authors describe the basic inferential characteristics or credentials of evidence as relevance,

credibility and probative force.668 They argue as follows:

Any item of directly relevant evidence must be linked to a penultimate probandum by a chain

of inferences. This chain can contain several links. The first link in the chain is always the

credibility link. The remaining links are those necessary to demonstrate the relevance of the

item to a penultimate probandum. The probative force of an item depends upon the strength

of each link in the chain.

Where the probative force of a mass of evidence needs to be assessed, the probative force of every

chain must be assessed. These individual assessments are then “combined to determine the net

probative value of the mass with respect to the ultimate probandum."669

4. Generalisation, background knowledge and '"common sense"Various authors have proceeded further upon the suggestion by Wigmore that inferential reasoning is

grounded in “common sense,” by combining this concept with that of the reasoner’s background

knowledge and experience and his or her own readiness to accept generalisations, either from “the

general experience of the court or upon expert testimony,”670 as the prism through which to view

accepted factum probans and arrive at factum probandum.

Twining argues that inferences may be “justified by reference to a background generalization drawn

from ‘general experience,’” which absent empirical research, involves falling back on “one’s own stock

of knowledge.”671 He elaborates on the role of general experience in the inferential process, arguing

that “we have to appeal to our own personal or vicarious experience, often referred to as ‘common

sense’, ‘general knowledge’ or ‘experience of the common course of events’.”672

Again referencing Bentham and Wigmore, Twining suggests that “all knowledge is derived from

human experience, which provides the ultimate test for the correctness or otherwise of all beliefs

about matters of fact.” On this basis, generalisations, rather than authentication based on scientific

666 Ibid, at 107667 Ibid, at 107 to 108668 Ibid, at xviii669 Ibid, op cit, at 71670 James, op cit, at 704671 Twining, W. Rethinking Evidence - Exploratory Essays, Northwestern University Press, Evanston, 1994 at 292672 Twining (1985), op cit, at 143

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laws, often form the basis of many judgments.673 Twining closes out this discussion with two

observations in relation to the judicial process. Firstly, he argues (in a manner that may cut across the

utility of Wigmore’s work for the judicial process) that the “practical exigencies of litigation in the

adversary system obviously leaves relatively little scope for “regular articulation of generalisations and

the construction of charts.”674 Secondly:

In order to make decisions we are forced to rely on general experience with all its

imperfections. Unlike the historian and the scientist, the adjudicator has a duty to decide; all

that one can hope for is that such decisions will be based on the best available grounds for

making judgments of fact.675

Similarly, Anderson, Schum and Twining make the point that "every inference is dependent upon a

generalization.”676 Those authors argue that generalisations are rarely universally true propositions,

but rather matters subject to “fuzzy quantifiers” (such as something usually occurs when another thing

happens).677 Whilst generalisations may operate intuitively rather than consciously in the minds of the

reasoner in a non-legal context, in legal proceedings a generalisation relied on to draw inferences

must be identified and have its strength or plausibility tested. This can be achieved by analysis having

regard to

• a “generality axis,” on which generalisations range from the most abstract form to those

specific to the precise case or context;

• a “source axis,” on which generalisations range from the synthetic or intuitive with no

identifiable source to those based on repeated personal experience and acquired knowledge;

and

• a “reliability axis,” on which generalisations range from those based on strongly held biases

or prejudices held irrespective of available data, through those based on commonly held but

unproven beliefs, to those based on scientific laws, well-founded scientific opinions and

widely shared conclusions from common experience.678

Stein acknowledges the role of these matters in the progression of inferential reasoning, in that

conclusions from evidence rely upon the existence of generalisations.679 But he argues connecting

generalisations to individual cases is possible “only when there is a real fit between the fact pattern of

the generalization and the case at hand.”680 In this regard, Stein comments specifically on the role of

missing evidence in the inferential process, with reference to what he calls an “information-stabilizing

assumption”:

any identifiable fit between an individual case and an applicable generalization is conditional

on the assumption that the missing evidence could not undo it. ... The validity of... such

673 Ibid, at 145674 Ibid, at 148675 Ibid, at 149676 Anderson, Schum and Twining, op cit, at 100677 Ibid, at 101678 Ibid, at 101 -102679 Stein, op cit, at 117680 Ibid

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assumptions depends on the unrealized potential of the missing evidence to produce a

different factual conclusion. ... This factor determines the argument’s resiliency, that is, the

extent to which the argument is evidenced and, more crucially, the extent to which it can

withstand changes in its underlying evidence base.681

Pardo similarly notes the crucial need to have regard to the potential for missing evidence when

relying on generalisations, and calls for the reasoner to rely on “their individual or collective

background knowledge, if roughly accurate, about the significance of this additional gap” between the

evidence and the event, through which it is more “likely to lead to more accurate decisions than

simply assuming the gap in the information does not exist.”682 Ligertwood and Edmond argue

similarly, in that where “a case comprises proof of a number of independent events then the evidential

support for the case as a whole is equivalent to the support for that event with the lowest inductive

probability.”683 Thus “that evidence which appears to be unavailable also needs to be factored into

any decision."684

Mack, however, sounds caution in relation to assumptions that judicial inference involves mere

common sense and natural reasoning, and calls for self-analysis by the inference drawer in

considering what culturally-specific knowledge they will draw upon.685 She argues:

this process is not “natural” at all, as it often depends on personal and cultural assumptions

and beliefs which are not the same for everyone - what is a natural inference for you may not

be so natural for me.686

Further, “common sense” does not acknowledge specificities such as individual beliefs, values,

standards, cultural perspectives and an absence of a stock of shared experiences, which run contrary

to the generalisations that are said to underpin inferential conclusions of fact.687 Thus, inferences are

measured against personal perspectives, which has the potential to “substitute the knowledge,

experience and perspective of the group which has dominated legal and public life, that is, older,

white, educated, heterosexual mates.”688 Ligertwood and Edmond identify the remedy for this problem

being through the legal system “accepting that reality is undoubtedly influenced and constructed

through psychological, social and political influences and processes ...[and so it’s task] is to peel back

or accommodate these influences in an effort to base its decisions on what really happens in the

world out there.”689

681 Ibid, at 118682 Pardo, op cit, at 22683 Ligertwood and Edmond, op cit, at 36684 Ibid, at 39685 Mack, K. “Teaching Evidence: Inference, Proof and Diversity,” (2000) 11 Legal Educ Rev 57 at 64686 Ibid, at 59687 Ibid, at 60 - 63688 Ibid, at 62 and 63689 Ligertwood and Edmond, op cit, at 41

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5. Cross-cultural interpretive ethosConnolly has suggested an approach to judicial inferential reasoning that draws on the background

knowledge of judges and applies it in a cross cultural setting, and in so doing has called for Courts to

adopt a “cross cultural interpretive ethos.”690 Judges are members of an “interpretive or conceptual

community,” informed in their beliefs by “other authoritative agents, including other judges.”691 To take

“epistemic advantage” of evidence and submissions put to the Court, the judge must “interpret or

otherwise cognitively appropriate those sources of information,”692 subject to the legal norms

regulating the reception of evidence.693 Where this involves evidence of concepts which are culturally

different to the background of the judge, it calls for a “process of enculturation,”694 which requires the

judge to have the capacity and motivation to bring relevant evidence within his or her sensory range

and engage in the kind of reasoning to cognitively appropriate the concepts involved.695

Connolly argues that the judicial interpretation of testimony involves a multi-stage process which,

relevantly, includes

a process of inference from what is believed or assumed by the judge to be the case about

the present behavioural outputs, environmental inputs and behaviorally relevant background

intentional states and governing intentional regularities or rationality class of the testimonial

agent ...to what is not yet the subject of belief by her - the identity of the behaviourally

explanatory intentional complex involved in the testimonial action in question.696

The process of inference takes place within the theoretical parameters of two theories, namely:

(a) The theory of the testimonial agent, which comprises a set of beliefs held by the judge “about

the present behavioural outputs, environmental inputs and behaviourally relevant background

intentional states and governing rationality of the testimonial agent.”697

(b) The judge’s theory of mind, which is a “set of beliefs maintained by the judge about the

causal regularities which typically obtain between the environmental inputs, behavioural

outputs, and intentional states of some set of human agents,”698 including propositions that

are thought to apply “for all normal agents,”699 drawn from “both her own cognitive

development in the face of her individual experience of the interaction of agents with the

world and that of the community of interpretive agents into which she is born and

subsequently socialized”700 (the judge’s “community’s folk theory of mind”701).

From the application of these two theories, the judge seeks to infer the best conclusion regarding

causation between environmental and intentional events, with other intentional events, and between

690 Connolly, op cit, at 213691 Ibid, at 63692 Ibid, at 74693 Ibid, at 76694 Ibid, at 102695 Ibid, at 99696 Ibid, at 121 -122697 Ibid, at 134698 Ibid, at 122 and 134-135699 Ibid, at 137700 Ibid, at 139701 Ibid, at 140

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intentional events and other intentional or behavioural events, from the observed and believed

behavioural output of the testimonial agent. This is then subject to testing and revision (confirmation

or disconfirmation) of the various propositions involved “in the face of any further justified beliefs

about the testimonial agent the judge might acquire” through further evidence or reasoning.702

Connolly identifies the following risks inherent in this process:

it does not follow ... that a judge is assured ... of possessing an interpretatively adequate

theory of mind for a given testimonial agent. Some set of the theory of mind propositions she

relies upon in interpreting the testimonial agent may be false or may be not applicable to (may

not be true of) the testimonial agent in question. Alternatively her theory of mind may not be

comprehensive enough - it may not include propositions which describe the regularities which

actually govern the testimonial action under interpretation.703

The judge must therefore be prepared to maintain, fine tune or abandon assumptions and beliefs in

accordance with subsequently justified beliefs about the testimonial agent, to maintain logical

consistency.704 Where this involves cultural difference between the judge and the testimonial agent,

such that “testimonial evidence offered to her... is relevantly informed by concepts she does not

possess, she must interpret and cognitively engage with other evidence about those concepts until

she reaches some level or vector of the sub-conceptual content ... that she does possess.”705

Consequently:

the more the judge justifiably believes about the past, present and future environmental

inputs, behavioural outputs and intentional states of the testimonial agent either directly or via

inference within a theoretical framework, the better placed she is to justifiably eliminate

implausible ascriptions of intentional states to the agent and hone in on the most plausible

ones.706

This requires the judge to develop an “interpretively adequate theory of the testimonial agent” to reach

a justified conclusion, through (where necessary having regard to the judge’s pre-existing epistemic

situation), the acquisition of more interpretively relevant beliefs about the testimonial agent over the

course of the hearing.707 Accordingly, “[i]n the indigenous land title context, it will be an interpretive

environment which facilitates the capacity of the judge to go on from that interpretation to understand

and legally recognize the indigenous actions those testimonial actions are about.”708

6. Concerns with mathematical approachesWhether mathematical approaches to probability can play a useful role in the inferential process is a

matter of debate.709 Hamer argues in favour of a role for mathematics in the processes, with a

702 Ibid, at 122 - 123, 135 and 145-146703 Ibid, at 141704 Ibid, at 157705 Ibid, at 160706 Ibid, at 162707 Ibid708 Ibid709 Ligertwood and Edmond, op cit, at 15

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probability threshold of 50 percent (or “more probable than not”) said to have a “solid basis in policy. A

standard of 50 per cent can be expected to maximise the number of correct decisions. It also

recognises the equality of the parties before the law.”710 He acknowledges though that “humans prefer

to make probability assessments through story construction. They therefore display a bias in favour of

colourful detailed evidence and against dry mathematical proof.”711 Hamer distinguishes these two

forms of judgment, as frequency-based judgments (based on statistical data) and scenario-based

judgments (based on stories which draw on detail to be credible and persuasive).712 The latter lends

itself to inferences which result in an ’’actual belief, amounting to reasonable satisfaction, about the

fact in question,”713 rather than mere numerical probability.

As Ligertwood and Edmond identify, there are various limitations on mathematical approaches to

probability, particularly the use of “Bayes Theorem” which is directed at considering the extent to

which the consideration of further evidence increases the probability of a hypothesis.714 Courts

generally do not have the luxury of revisiting decisions to update them as new evidence comes to

light. In many cases such mathematical approaches may lead to results which are contrary to human

intuitions,715 and rely on a hypothesis being compared with all other possible explanatory hypothesis,

such that unless “all alternative hypotheses are taken into account, [the factual determination process]

is biased in favour of those explanations put forward by the parties in a case.”716

These approaches are also concerned with the nature of classes of events, rather than determining

unique events, which is the role of the Court.717 The use of mathematical probabilities for and against

a hypothesis also raises the question “[c]an a Court ever be satisfied that a particular hypothesis did

occur when confronted with the express probability that it did not?”718 Where there are multiple

independent elements relevant to proof in an action, perverse outcomes may also be arrived at where

the probability of individual elements each exceeds 50%, but when multiplied by each other to arrive

at an overall probability the result may fall far short of 50%.719

Hodgson summarises why mathematical approaches are generally not favourable in the Courts’

inferential processes, in that:

decision-making generally involves a global assessment of a whole complex array of matters

which cannot be given individual numerical expression. Such a decision depends very much

more on commonsense, experience of the world, and beliefs as to how people generally

behave (folk psychology), than on mathematical computations; and concentration on

mathematical probabilities could prejudice this commonsense process.720

710 Hamer, D. “The Civil Standard of Proof Uncertainty: Probability, Belief and Justice" (1994) 16 Sydney Law Review 506 at 509 and 535711 Ibid, at 507712 Ibid, at 525713 Hodgson, op cit, at 731714 Ligertwood and Edmond, op cit, at 24715 Ibid, at 30716 Ibid, at 32717 Ibid, at 35718 Ibid, at 32719 Hamer, op cit, at 527; Hodgson, op cit, at 747720 Hodgson, op cit ,at 736; See for example Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361

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The process of inferences is therefore more reliant on “adequate material and belief rather than

quantitative rules, due to the combination of different versions of facts given by different witnesses;

difficult questions as to honesty, accuracy of recollection and partial recall in the reconstruction of

events; and the “vexed issue of demeanour.”721

7. Explanation-based reasoningIn contrast to mathematical approaches or probability theories, Pardo and Allen argue a judicial

inferential process is best served by explanation-based reasoning. For those authors, this model

involves the following two steps:

(a) Generating potential explanations of the evidence - in a legal context, this is determined

with reference to the substantive law, which itself makes provision for what triggers rights,

interests, liabilities and obligations.722 In litigation, this identification process is carried out by

the parties themselves, by seeking to satisfy the respective burdens of proof on claims or

defenses, through argument and counter-argument as to whether requisite elements are or

are not made out, and through offering alternative versions of events as explanations of the

evidence. The Court itself may also construct its own potential explanations in reaching its

conclusions.723

(b) Selecting the best explanation from the list of potential ones as the actual one - “better-

ness” is assessed by weighing explanations against each other on the criterion of:

• simplicity;

• greater explanation (consilience);

• better according with background beliefs (coherence); and

• being less ad hoc.

It also requires an exercise in considering the “contrastive nature of the explanations

involved” to pick out the appropriate foils.724 This is assessed by reference to the relevant

standard of proof, having regard firstly to the substantive law, which will require “a sufficiently

detailed explanation of the evidence to show the plaintiff is entitled to relief,” and secondly

“where the parties choose to disagree focuses the attention on the appropriate details for

choosing among contrasting explanations.”725

According to Pardo and Allen, the party who carries the evidentiary burden will be unsuccessful if

proffered explanations are equally bad or good, or if there is too little evidence available to

differentiate between potential explanations.726 Ultimately:

the more the evidence is explained by, and hence justifies, the party’s explanation of the

evidence, the greater the probative value and hence the stronger the inference to the truth of

721 Hodgson, op cit, at 736 and 737722 Pardo and Allen, op cit, at 229723 Ibid, at 233-234724 Ibid, at 229-232725 Ibid, at 234 and 236726 Ibid, at 237

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that explanation. The strength of the inference will depend contextually on the other evidence,

and the presence of other, contrary explanations.727

Upton makes similar arguments in support of explanatory rather than probability approaches to

inference drawing. He argues that inferences may be drawn, based on the governing idea “that

explanatory considerations are a guide to inference, that scientists infer from the available evidence to

the hypothesis which would, if correct, best explain that evidence.”728 In considering what constitutes

the “best” explanation, Lipton distinguishes between concepts of the most probable (or likeliest)

explanation, and the explanation that if correct, would provide the greatest degree of understanding

(or the loveliest explanation).729 That author favours the latter of these concepts in that the

explanation that if correct would provide the most understanding is also likeliest to be correct.730 731 An

explanation that provides the most understanding means the explanation which explains:

more types of phenomena, explains them with greater precision, provide more information

about underlying mechanisms, unify apparently disparate phenomena, or simplify our overall

picture of the world.™

Also common with Pardo and Allen, Upton emphasises the need for explanation of what makes the

“difference between the fact and foil,”732 namely the need for explanation of phenomena to take “a

contrastive form: one asks not simply 'Why P?’, but Why P rather than Q?’”733

8. Other approachesEpstein and King have set out to “adapt the rules of inference used in the natural and social sciences

to the special needs, theories, and data in legal scholarship.”734 They divide inferences into two

categories, descriptive and causal. Descriptive inferences are made by collecting observations upon

which generalisations can be applied about the world based on testing just a small part of it.735 In

relation to these observations, it is only the process by which the data came to be observed (i.e. the

evidence) and not the status of the author or the investigator itself that is relevant to the inferential

value.736 Causal inferences relate to whether one factor or set of factors results in some outcome.737

Epstein and King emphasise the importance of causal inference to the judicial process,

notwithstanding the acknowledged uncertainties involved in inferential conclusions, and Courts

should:

not change the object of their inferences because causal inference is difficult. Instead they

should make their questions as precise as possible, follow the best advice science has to

727 Ibid, at 241728 Lipton, P. “Inference to the Best Explanation” in Newton-Smith, W. H. (ed) A Companion to the Philosophy of Science, Blackwell, 2000 184 - 193 at 184 and 187729 Ibid, at 188730 Ibid, at 189731 Ibid732 Ibid, at 190733 Ibid, at 189734 Epstein and King, op cit, at 1 and 10735 Ibid, at 29 and 30736 Ibid, at 34 and 45737 Ibid, at 34 - 35

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offer about reducing uncertainty and bias, and communicate the appropriate level of

uncertainty readers should have in interpreting their results.738

Epstein and King suggest the most useful approach to estimating uncertainty is to “find the weakest

link in the chain of reasoning - the part of the argument that rests on the least empirical evidence or

that is the most vulnerable to attack,” and consider if that piece of evidence were changed, whether

the conclusion would be assessed as wrong.739 Similarly, hypotheses the subject of causal inference

should be tested to ensure that the process by which the data came to be observed is fully

recorded,740 and the more data the better,741 as knowing more facts should make for better

inferences.742 This also ensures conclusions are able to be replicated,743 and avoids “omitted variable

bias” to ensure competing explanations are not ignored.744

Those authors have set out some considerations for measuring variables and deriving estimates in

the inferential process. Measurement involves “comparing some aspect of reality with a standard,

such as exists for quantities, capacities, or categories”745 Measurements are assessed with reference

to:

• reliability, being the extent to which it is possible to replicate a measurement and reproduce

the same value;746 and

• validity, being the extent to which a new measure is consistent with prior evidence, is

unbiased, and is efficient (i.e. has the least variance across several measures).747

Estimations made in the inferential process should also be considered against unbiasedness,

efficiency and consistency criteria.748

Josephson has set out a series of factors against which the strength of an inferred conclusion may be

determined:

(a) Decisiveness and independence of leading hypothesis - how decisively the leading

hypothesis surpasses the alternatives, and is independent of them in that it can stand by

itself. For this purpose, hypotheses should be evaluated in isolation or in contrast with others,

having regard to internal consistency, plausibility (with reference to consistency with

background knowledge), likelihood, simplicity, explanatory power, specificity and productive

promise.749 In this way “[cjonfidence comes largely from ruling out or discrediting the

alternative explanations.”750

738 Ibid, at 37739 Ibid, at 50740 Ibid, at 103741 Ibid, at 24742 Ibid, at 102743 Ibid, at 38744 Ibid, at 77745 Ibid, at 81746 Ibid, at 83747 Ibid, at 90 - 95748 Ibid, at 97 - 98749 Josephson, op cit, at 1626 and 1627750 Ibid, at 1641 and 1642

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A technique for assessing this is the “Essentials First, Leveraging Incompatibility Strategy,”

which involves:

• identifying data with only one possible explanation or one that has the lowest

ambiguity;

• conclude by local abductive inference the best explanation for each low-ambiguity

point;

• remove hypotheses that are strongly incompatible with accepted hypotheses, reduce

the score for hypotheses that are weakly incompatible with accepted ones, accept

hypotheses that are hard-implied by accepted ones and increase scores for

hypotheses that are soft-implied by accepted ones; and

• lower the standards for acceptance and continue to accept hypotheses that are best

explanations for some data but which are not best by a large difference.751

(b) Thoroughness of search conducted for alternative explanations - to ensure all plausible

hypotheses are included and reduce the risk that narrowness of the contrast set poses for the

true explanation being overlooked. Josephson suggests two approaches to this endeavour:

• The “Noise hypothesis,” which is a consideration of the extent to which data can be

disregarded on the basis that it its explanation is “merely coincidence, misperception,

miscategorization, fraud, perjury, experimental error, noise, or some similar

phenomena.”

• The “New hypothesis,” which considers whether rival hypotheses are based on past

experience, lacking adequacy for the current situation and contrary to a new,

unprecedented, explanation.752

(c) The strength of the necessity to reaching a conclusion - having regard to whether further

evidence can be gathered before making a decision and whether such evidence is or is not

significantly likely to reduce uncertainty.753

(d) The costs of being wrong and the rewards of being right.754

Josephson also suggests that, whilst the process of abduction is fallible, incorrect abductive

conclusions can only result if false abductive conclusion was overrated, or a true answer was

underrated; the true answer was not considered; flaws in the data were caused by the Noise

hypothesis; or the true answer was mistakenly thought not to explain important findings. Such errors

may arise due to reasoning and logical mistakes, mistaken background beliefs or missing evidence

due to an insufficiently broad hypothesis set.755

In a criminal law context, Nesson is critical of the concept of “permissive inferences,” which assist the

prosecution by authorizing juries to infer an essential element of a crime (a conclusion relevant to

guilt) from proof of some other fact commonly associated with it (the predicate fact).756 According to

751 Ibid, at 1634 and 1635752 Ibid, at 1626, 1628 and 1629753 Ibid, at 1626 and 1631754 Ibid, at 1626 and 1631755 Ibid, at 1626, 1631 and 1632756 Nesson, C. R. “Reasonable Doubt and Permissive Inferences: The Value of Complexity,” 92 Harv. L. Rev. 1187 at 1187 and 1210

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that author, such an approach is only acceptable where the inference from predicate to presumed fact

is rationally based and its communication is properly framed in its overall circumstantial context. In

other words, a naked inference is impermissible and should remain subject to satisfactory

explanations to the contrary,757 such that “additional evidence must suffice to differentiate the case

from the aggregate of all cases in which the predicate fact appears, in a manner which permits a

judgment about what happened in the specific case.”758

9. Conclusion to Chapter 6This Chapter provided an analysis of general evidentiary theories relevant to inferential reasoning by

the Courts. It considered various contributions to thinking in this area, notably the work of John Henry

Wigmore and other authors who have built on that author’s approach, explanatory approaches to

inferential reasoning, and inference drawing in the cross-cultural context. It also considered specific

theoretical issues such as the role for generalisations, “common sense” and background knowledge in

inference drawing. Many approaches involve a consideration of equality of allocation of risk of error,

and the comparative costs of being wrong and the rewards of being right.

Whilst it is unlikely that Courts will adopt the full-scale methods analysed in this Chapter to determine

whether an inference has probative force, judges may still consider how key concepts and steps the

subject of these tests are made out against the evidence presented to them.

Considerations in the relevant literature of why inferential reasoning is necessary in the judicial

process draws strong parallels with the same questions raised in relation to the matters the subject of

Chapter 4. A key point is that Courts should not recoil at the suggestion that what is knowable with

certainty is always partial, and that often absolute and objective facts are not determinable. These

challenges are the foundation of the need for inferential reasoning, a practice which is widely

accepted and in many cases is the only basis upon which disputes can be adjudicated with finality.

To the extent the inferential process relies on:

• Generalisations, judges should test the strength and plausibility of such generalisations

against the generality, source and reliability axes, and make a holistic assessment based on

the extent to which a generalisation tends to “stack up” towards the right-hand side of each

axis.

• The “common sense” and background experience of individual judges, individual judges

should exercise introspection to be self-aware of their own individual beliefs, values,

standards, cultural perspectives and experience, to test whether they bring any inherent

biases to the process, and modify their reasoning to offset this if necessary.

Courts should be vigilant for the potential for missing or unavailable evidence that could undo the

probability of an inference that may be drawn, and consider if they are satisfied that the parties have

cast their evidentiary nets sufficiently wide to avoid putting judges in the position of drawing

757 Ibid, at 1222- 1225758 Ibid, at 1225

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inferences based on “omitted variable bias.” Possible inferences should be considered and contrasted

against all relevant “foils,” so that naked inferences are not accepted without being tested against

satisfactory explanations to the contrary.

The analysis included in this Chapter provides useful insights into an area that, as will become

apparent in the subsequent chapters, is not (and perhaps cannot be) dealt with in any material way by

statute or common law. As previously indicated, the findings of this thesis on Research Question 2

regarding the extent to which the Courts have already developed informal guidelines, is ultimately

largely in the affirmative. However, principles for the actual mental processes of inferential reasoning

are not apparent from any source based in law. This analysis, like that in Chapter 5, therefore

provides a useful input to the Inference Guidelines that might otherwise have been deficient in that

regard.

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Chapter 7 - General Laws of Inference

Overview of Chapter 7This Chapter analyses the general laws regarding the drawing of inferences, particularly as these

relate to civil trials. By doing this, it sets out the general principles that provide the groundwork for a

similar analysis of these issues in Chapter 8, which is specifically in relation to native title

determinations.

Part 1 of this Chapter analyses the clear principles laid down by the Courts in relation to the regulation

of what are appropriate inferences and the circumstances in which they are drawn, particularly around

reasonableness and on the basis of objective facts and not on the basis of speculation, conjecture or

guesswork. Part 2 addresses principles laid down by the Courts for how the relevant standard of proof

is to be applied in the inferential process. The matters that will fall short of inferential standards are

analysed in Part 3.

Part 4 assesses prospectant and retrospective evidence and proof of custom aspects of inference

drawing. Issues in relation to a tactical burden and adverse inferences are the subject of analysis in

Part 5. In Part 6, the application of principles and demands on the evidence of expert witnesses to

ensure the efficacy of inferences drawn by them is considered. In many respects these have

equivalencies with those that the Court applies to itself.

Part 7 then considers some specific approaches taken in various evidence statutes across Australian

jurisdictions. This includes inferences that may be drawn from or about authenticity and identity of

documents and other things, the accuracy of statements made therein, the contemporaneousness of

the recording of the information, any motivations an author may have had to conceal or misrepresent

facts, the systematic nature of the recording of the information and the inter-relationship with oral

evidence about any disputed occurrences.

1. Basic principlesThe circumstances in which it is appropriate to draw inferences in civil matters has been considered

extensively by the Courts. Dixon CJ summarised the general rules which apply to the drawing of an

inference in favour of a plaintiffs case in Jones v Dunkef759 (Jones v Dunkel), as follows:

• An inference must arises as an affirmative conclusion from the circumstances proved in

evidence.

• The inference must be established to the reasonable satisfaction of a judicial mind.

• In a civil case, you need only circumstances raising a more probable inference in favour of

what is alleged according to the course of common experience.

759 (1959) 101 CLR 298

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• More probable means that upon a balance of probabilities such an inference might

reasonably be considered to have some greater degree of likelihood.

• But such circumstances must do more than give rise to conflicting inferences of equal degree

of probability so that the choice between them is mere matter of conjecture - the Court cannot

choose between guesses, where the possibilities are not unlimited, on the ground that one

guess seems more likely than another or the others.

• The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of

the truth of which the tribunal of fact may reasonably be satisfied.760 761

In that case, Kitto J distinguished between conjecture and inference, in that for the latter “some fact is

found which positively suggests, that is to say provides a reason, special to the particular case under

consideration, for thinking it likely that in that actual case a specific event happened or a specific state

of affairs existed. ”767 Further in that case, Menzies J highlighted that inference does not take

subordinated evidentiary values to the proven facts upon which they rely, in that “[ijnferences from

actual facts that are proved are just as much part of the evidence as those facts themselves.”762

The concepts of inferences and circumstantial evidence are inter-related. Dawson J held in Shepherd

v R,763 that “[cjircumstantial evidence is evidence of a basic fact or facts from which the jury is asked

to infer a further fact or facts,” in contrast to “direct or testimonial evidence, which is the evidence of a

person who witnessed the event sought to be proved.”764 Gummow, Hayne and Crennan JJ held in

R v Hillier,765 “in considering a circumstantial case, all of the circumstances established by the

evidence are to be considered and weighed in deciding whether there is an inference” to be drawn.766

There is no compulsion on a Court to expressly state that an inference has been drawn. In

Soulemezis v Dudley (Holdings) Pty Ltd767 (Soulemezis), Kirby P (as His Honour then was) held “it is,

in my opinion, a mistake to conclude that a judge should or can set forth the reasoning process he

has followed from one fact to another.”768 The judicial obligation to give reasons does not “require of

trial Judges a tedious examination of detailed evidence or a minute explanation of every step in the

reasoning process that leads to the Judge's conclusion ... [but merely] to state generally and briefly

the grounds which have led him or her to the conclusions reached concerning disputed factual

questions and to list the findings on the principal contested issues.”769

760 Ibid, at 304-305761 Ibid, at 305762 Ibid, at 309763 (1990) 170 CLR 573764 Ibid, at [4]765 [2007] HCA 13766 Ibid, at [46]; See also Plomp v R (1963) 110 CLR 234767 (1987) 10 NSWLR 247768 Ibid, at 274769 Ibid, at 259

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2. Standard of proof for inferencesThe standard of proof for inferences in a civil trial is the balance of probabilities. In Martin v Osborn,770

Dixon J described the assessment of the degree of probability involved in this process, as follows:

facts subsidiary to or connected with the main fact must be established from which the

conclusion follows as a rational inference. ... This means that, according to the common

course of human affairs, the degree of probability that the occurrence of the facts proved

would be accompanied by the occurrence of the fact to be proved is so high that the contrary

cannot reasonably be supposed.77'

A fact is proved to be true on the balance of probabilities, being the standard of proof applying to

disputed material facts in civil trials, if its existence is more probable than not, or if it is established by

a preponderance of probability.772

Williams, Webb and Taylor JJ in Holloway v McFeeters773 discussed the standard of proof

requirements that apply before an inference can be drawn in a civil case, with reference to the

following considerations:

• In the absence of direct proof, “circumstances appearing in evidence give rise to a

reasonable and definite inference” are sufficient.

• Such circumstances “must do more than give rise to conflicting inferences of equal degree of

probability so that the choice between them is mere matter of conjecture.”

• The inference may be drawn, with regard to the course of common experience, where it is

more probable from the evidence or admission, left unexplained.

• More probable means that “upon a balance of probabilities such an inference might

reasonably be considered to have some greater degree of likelihood."774

More recently, as Deane, Gaudron and McHugh JJ held in Malec vJC Hutton Pty Ltd,775 the effect of

a Court determining “the probability of the event having occurred is greater than it not having

occurred” is that for the purposes of adjudication, “the occurrence of the event is treated as certain.”776

Other tests include that suggested by Spigelman CJ in Seltsam Pty Ltd v McGuinness777 (Seltsam),

that the Court must “reach a level of actual persuasion,”778 779 and that of Kiefel J in Tabet v Gett,77e that

770 (1936) 55 CLR 367771 Ibid, at 375772 Briginshaw v Briginshaw [1938] 60 CLR 336 at 343 per Latham CJ; Rejfek v McElroy (1965) 112 CLR 517773 [1956] HCA 25; (1956) 94 CLR 470774 Ibid, at [8], with reference to Richard Evans & Co Ltd vAstley (1911) AC 674 at 687 and the judgment of Dixon, Williams, Webb, Fullagher and Kitto JJ in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; quoted with approval by Stephen J in Girlock (Sales) Pty Ltd v Murrell (1982) 149 CLR 155 at 161 to 162. See also Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd (2013) 118SASR 11 at [72]775 (1990) 169 CLR 638776 Ibid, at 642 to 643777 (2000) NSWCA 262778 Ibid, at [135] and [136]779 (2010) 240 CLR 537

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“such an inference might reasonably be considered to have some greater degree of likelihood; it does

not require certainty.”780 781

This standard has been described as a “sliding scale.” Dixon J in Briginshaw v Briginshaw™

(Briginshaw), set out the following considerations relevant to this concept:

• The civil standard of proof “appears to acknowledge that the degree of satisfaction demanded

may depend rather on the nature of the issue.”

• Reasonable satisfaction is to be considered with regard to “the nature and consequence of

the fact or facts to be proved,” including the “seriousness of an allegation made, the inherent

unlikelihood of an occurrence of a given description, or the gravity of the consequences

flowing from a particular finding.”

• “’reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or

indirect inferences.”782

The Briginshaw principles follow on from Dixon J’s previous judgment, in Sodeman v ft,783 wherein

His Honour stated that “questions of fact vary greatly in nature and in some cases greater care in

scrutinizing the evidence is proper than in others, and a greater clearness of proof may be properly

looked for.”784 The Courts have held that the Briginshaw principles are not to be applied “in the

abstract or in a manner divorced from the circumstances of a particular case,” but rather (in addition

to matters where criminal conduct or fraud are to be proved) “where the importance and gravity of the

consequences flowing from a particular finding are such that it is appropriate to apply it.”785

Thus in Shaw v Wolf,786 Merkel J held that "given the consequences for the defending respondents of

an adverse finding, in the present case, good conscience and principle require that the Court should

not lightly make a finding on the balance of probabilities, that any of those respondents is not an

Aboriginal person as defined in the Act.”787 His Honour so found on the basis of the longstanding

identification of the respondents as Aboriginal persons, and their family and community ties and

involvement in various Aboriginal organisations, such that a contrary finding would have “severe and

deeply personal impact on that respondent’s identity, family and communal relationships as well as

his or her future entitlements to participate in programs and organisations for the benefit of Aboriginal

persons.”788

Interestingly in the context of native title matters which involve judgments made in rem, O’Loughlin J

in Cubillo v Commonwealth789 held “the principles of Briginshaw have equal and like application to

persons whether they are, or are not, parties to the litigation.”790 The Briginshaw principles also have

780 Ibid, at [111]781 (1938) 60 CLR 336782 Ibid, at 361 - 362783 (1936) 55 CLR 192784 Ibid, at 216785 G yf/(1994) 181 CLR 387 at 399 per Deane, Dawson and Gaudron JJ786 (1998) 83 FCR113787 Ibid, at 125788 Ibid, at 124 to 125789 [2000] FCA 1084; (2000) 103 FCR 1790 Ibid, at 117

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statutory effect, in that the Evidence Act s 140(2) provides that the Court may have regard to the

gravity of the matters alleged when deciding if a matter is proved to the requisite standard.

The different standard of proof required in criminal proceedings - beyond a reasonable doubt - is

such that different principles apply to inference drawing in criminal proceedings. The High Court

articulated the difference between the criminal standard of proof and the civil standard, for the

purposes of inferential reasoning, in Bradshaw v McEwans.™ There is was held that “the former

requires the facts to exclude reasonable hypotheses consistent with innocence whereas the latter

needs only circumstances raising a more probable inference in favour of what is alleged.” The High

Court went on to discuss what sufficed in the absence of direct proof and certainty of conclusions, as

follows:791 792 793

it is enough if the circumstances appearing in the evidence give rise to a reasonable and

definite inference, provided that they do more than give rise to conflicting inferences of equal

degrees of probability so that the choice between them is a matter of conjecture. If

circumstances are proved in which it is reasonable to find a balance of probabilities in favour

of a particular conclusion, it is not to be regarded as mere conjecture or surmise.792

In criminal matters, a distinction is drawn between types of intermediate facts upon which an

inference may ultimately be drawn, for the purposes of whether relevant directions should be given to

the jury. The two types are:

• Links in a chain facts, which are individually a basis for, and therefore indispensable to, the

reasoning involved as the foundation for an ultimate inference, and which therefore must be

individually proven to the relevant standard before an inference may be drawn.

• Strands in a cable facts, where an inference may be drawn having regard to all the

circumstances or a combination of facts, none of which considered alone would support the

inference and notwithstanding one or more of the individual facts cannot be proven to the

relevant standard.794

In civil cases, it is the judge’s role to determine the weight attributable to evidence established by

inference and whether the burden of proof is satisfied. In Soulemezis, the Court held that weight given

may be affected by a judge’s “experience of the significance of that fact in the order of things,” such

that the judge’s reasons “may partake as much of intuition based on experience as on formal and

deductive reasoning.”795 The judge’s satisfaction of relevant matters:

may depend upon matters subjective to him as well as upon matters common to judges. ... The

determination of facts is assumed to be objective. But it would be to misunderstand the basis of

a decision, and in particular decisions in matters of assessment, weight and the like, to assume

791 (1951) 217 ALR 1792 Ibid, at 2 and 5, with reference to Richard Evans & Co Ltd vAstley [1911] AC 674 at 687793 (1951) 217 ALR 1 at 2 and 5794 Shepherd v R ('i990) 170 CLR 573 at 579 per Dawson J and 593 per McHugh J\Rv Owen (1991) 56 SASR 397 at 408;R i/ Merritt (1999) NSWCCA 29 at [70]; Davidson v R [2009] NSWCCA 150 at 151 - 152; Burrell v R [2009] NSWCCA 163 at [86]795 (1987) 10 NSWLR 247, at 273 - 274

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that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective

considerations.796

3. Matters which fall short of inferential standardsVarious judgments have found that if an inferred fact is merely plausible based on proved facts, then it

is only conjecture and an inference is not available.797 798 Lord Macmillian held in Jones v Great Western

Railway Co\79B

The dividing line between conjecture and inference is often a very difficult one to draw. A

conjecture may be plausible, but is of no legal value, for its essence is that it is a mere guess.

An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it

is a reasonable deduction it may have the validity of legal proof.799

Jordan CJ in Carr v Baker,800 held that “[t]he existence of a fact may be inferred from other facts when

those facts make it reasonably probable that it exists,” but if they merely show it is possible that the

fact may exist, this is only conjecture, which may “range from the barely possible to the quite

possible.”801 802

The important distinction between a “permissible inference” and a “conjecture” is highlighted

throughout the relevant jurisprudence. The House of Lords held in Caswell v Powell Duffryn

Associated Collieries Ltd,602 that:

Inference must be carefully distinguished from conjecture or speculation. There can be no

inference unless there are objective facts from which to infer the other facts which it is sought

to establish. In some cases the other facts can be inferred with as much practical certainty as

if they had been actually observed. In other cases the inference does not go beyond

reasonable probability. But if there are no positive proved facts from which the inference can

be made, the method of inference fails and what is left is mere speculation or conjecture. ”803 804

The High Court noted in Lopes v Taylor604 (Lopes), the difficulty of making the relevant distinctions, in

that “[i]n some circumstances it is not easy to fix the boundary line between legitimate inference and

conjecture.”805 Similarly, Spigelman CJ in Seltsam observed the “characterisation of a reasoning

process as one or the other occurs on a continuum in which there is no bright line division,

796 Ibid797 Carr v Baker (1936) 36 SR (NSW) 301, at 306-307; Bradshaw v McEwans (1951) 217 ALR 1 at 2 and 5; Nominal Defendant v Owens (1978) 45 FLR 430, at 434;Se/tsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (2009) 179 FCR 169 at [117]; Wotton v State of Queensland (No 5) [2016] FCA 1457 at [116]798 (1930) 47 TLR 39799 Ibid, at 45800 (1936) 36 SR (NSW) 301 at 306801 Ibid802 [1940] AC 152803 Ibid, at 169-170 and referenced in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 and Taylor v Workers Compensation Regulator [2017] QIRC 006804 (1970) 44 ALJR412805 Ibid, at 418

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nevertheless the distinction exists,”806 with the test being whether or not it is reasonable to draw the

inference.807

In Jackson v Lithgow City Council,808 Allsop P declined an invitation from Counsel for the appellant to

infer by effectively choosing the most likely guess, and held “[t]he inference must be available and be

considered to be more probable than other possibilities.”809 810 811

In the case of Coles Supermarkets Australia Pty Ltd v Bright,8'0 the New South Wales Court of Appeal

held:

A finding of fact essential to a conclusion as to liability must be established on the balance of

probabilities and not merely by guesswork or speculation where the evidence is effectively

silent, as explained by Dixon CJ in Jones v Dunkel. There is no bright line distinction to be

drawn between inferences based on common experience and guesswork or speculation, but

the distinction depends upon the plaintiffs obligation to establish an affirmative satisfaction as

to the fact based on probabilities.8"

4. Prospectant evidence, retrospective evidence and proof of custom

There are a number of other specific forms of circumstantial evidence that have been recognised by

the Courts, of relevance to this thesis. Firstly, there is “Prospectant Evidence,” which applies where

“the occurrence of an act, state of mind or state of affairs in the past justifies an inference that the act

was done, or state of mind or affairs existed, at the moment of time into which the Court is

inquiring.”812One example of this is the “Presumption of Continuance,” a presumption that something

continues unless there is evidence that it has ceased. This was described in the New South Wales

Court of Criminal Appeal as being “no more than a convenient way of describing a process of logical

reasoning involving the drawing of inferences from established facts.”813

There is also “Retrospective Evidence,” which Atkinson J (drawing on Heydon) described in Astway

Pty Ltd v Council of the City of the Gold Coast City8" as “a type of circumstantial evidence in which

the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that the act

was done, or that the state of mind or affairs previously existed.”815 As an example, the Court “may

also be asked to infer from the existence of indigenous customs at a certain date their existence at an

earlier date.”816

806(2000) NSWCA 262 at [84],807 Ibid, at [88], drawing from the judgment in Bradshaw v McEwans, (1951) 217 ALR 1 at 5 and its application in Luxton v Vines [1952] 85 CLR 352 at 358.808 [2008] NSWCA 312809 Ibid, at [12]810 [2015] NSWCA 17811 Ibid, at [17]812 Heydon, op cit, at 17813 R v Noonan (2002) 127 A Crim R 599 at [18]814 [2008] QCA 73815 Ibid, at [43]; Heydon, op cit, at 28 to 29816 Heydon, op cit, at 29, referring to Gumana v Northern Territory of Australia (2005) 141 FCR 457 at [195] - [202] and Harrington-Smith v State of Western Australia (No 9) (2007) 238 ALR 1 at [341] - [350]

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Another form of inferential reasoning-based evidence is proof of custom, which Heydon identifies as

an exception to the general rule that a Court cannot treat as a fact that proved through evidence in a

previous case. This is because “a time must come when the courts, having had the question of the

existence of a custom before them in other cases, are entitled to say that they will take judicial notice

of it and will not require proof in each case.”817 818 819 Examples of proof of custom in the general law include

Hammerton v Honey,6™ where Jessel MR held the “usual course” of evidencing proof of custom, in

circumstances where actual usage in all time was impossible to prove by living testimony, was as

follows:

Persons of middle or old age are called, who state that, in their time, usually at least half a

century, the usage has always prevailed. That is considered, in the absence of countervailing

evidence, to show that usage has prevailed from all time.6™

Similarly in Brocklebank v Thompson,820 Joyce J held that rights enjoyed with a regular usage of

20 years that were unexplained and uncontradicted, are deemed to have had a legal origin and to

have commenced beyond legal memory, as an immemorial custom and right.821

5. Tactical burden and adverse inferencesFailure by a party that does not bear the onus of proof to produce evidence in response to the party

that does can raise a risk of the Court drawing an inference in favour of the latter party. This was

explained by Mason CJ, Deane and Dawson JJ stated in Weissensteiner v R,822 823 as follows:

when a party to litigation fails to accept an opportunity to place before the court evidence of

facts within his or her knowledge which, if they exist at all, would explain or contradict the

evidence against that party, the court may more readily accept that evidence.623

Their Honours held this “is not just because uncontradicted evidence is easier or safer to accept than

contradicted evidence,” but rather “because doubts about the reliability of witnesses or about the

inferences to be drawn from the evidence may be more readily discounted in the absence of

contradictory evidence from a party who might be expected to give or call it.”824

Similarly, Heydon J in Strong v Woolworths Limited825 explained there is an evidential, provisional or

tactical burden on a defendant arising in “circumstances in which a plaintiff calls evidence sufficiently

weighty to entitle, but not compel, a reasonable trier of fact to find in the plaintiffs favour.” 826 His

Honour held that if the defendant does not call evidence of weight:

817 Heydon, op cit, at 213818 (1876) 24 WR 603819 Ibid, at 604820 [1903] 2 Ch 344821 Ibid, at 350. See also New Windsor Corporation v Mellor [1975] Ch 380, at 386 and 391822 (1993) 178 CLR 217823 Ibid, at [28]824 Ibid825 (2012) 246 CLR 182826 Ibid, at [53] and [60]

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it will run a risk of losing on the issue - that is, a risk that at the end of the trial the trier of fact

will draw inferences sufficiently strong to enable the plaintiff to satisfy the legal (ie persuasive)

standard of proof.827

A shifting of the “provisional” or “tactical” burden is similar in consequence to “adverse inferences.”828

The concept of an adverse inference derives from the “Rule in Jones v Dunkel."829 830 831 832 Heydon has

summarised the Rule in Jones v Dunkel as follows:

An unexplained failure by a party to give evidence (including calling witnesses, tendering

documents or providing material to an expert witness) may lead to an inference that the

uncalled evidence or missing material would not have assisted that party’s case. The rule

applies to both the bearer of the burden of proof and the other party.880

Relevant passages from the decision in Jones v Dunkel include the following, from the judgment of

Kitto J:

any inference favourable to the plaintiff for which there was ground in the evidence might be

more confidently drawn when a person presumably able to put the true complexion on the

facts relied upon as the ground for the inference has not been called as a witness by the

defendant and the evidence provides no sufficient explanation of his absence.881

In that case Menzies J similarly held:

where an inference is open from facts proved by direct evidence and the question is whether

it should be drawn, the circumstance that the defendant disputing it might have proved the

contrary had he chosen to give evidence is properly to be taken into account as a

circumstance in favour of drawing the inference.882

Windeyer J’s judgment in Jones v Dunkel referred833 834 to the judgments of Abbott CJ and Best J in f? v

Burdett,884 who considered that where “the opposite party has it in his power to rebut” a presumption

“by evidence, and yet offers none; for then we have something like an admission that the presumption

is just,” and that where a party “offers no explanation or contradiction” to evidence given that invites

such explanation or contradiction, “can human reason do otherwise that adopt the conclusion to which

the proof tends?”835 836

One purpose of the Rule in Jones and Dunkel is, as set out by Newton and Norris JJ In O’Donnell v

Reichard,886 “in deciding whether to draw inferences of fact, which are open [to the Court] upon

evidence which has been given, ... in relation to matters with respect to which the person not called

827 Ibid828 As discussed in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349 at [76]829 The effect of which was summarised by Hutley JA in Payne v Parker [1976] 1 NSWLR 191 at 194 as being to “cut back some of the consequences of the basic assumption of the adversary system of proof, namely, that parties may withhold evidence, and witnesses who may assist the court, if it is to their own advantage.”830 Heydon, op cit, at 38831 (1959) 191 CLR 298 at 308832 Ibid, at 312833 Ibid, at 321834 (1820) 4 B & Aid 95; (1820) 106 ER 873835 Ibid, at 122 and 161-162836 [1975] VR 916

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as a witness could have spoken.”837 In G v H, Deane, Dawson and Gaudron JJ considered that two

inferences might be drawn in the relevant circumstances, namely “the evidence, if called, would not

assist the party’s case,” and that “the failure to give evidence may result in more ready acceptance of

the evidence for the other party or the more ready drawing of an inference that is open on that

evidence.”838 839

Both Heydon and Hodgson JA in Ho v Powell829 (Ho) have recognised the rule in Jones v Dunkel as a

particular application of the principle set down by Lord Mansfield CJ in Blatch v Archer,840 that “all

evidence is to be weighed according to the proof which was in the power of one side to have

produced, and in the power of the other to have contradicted.”841 Heydon links this maxim to the

problem of deciding issues of fact on the civil standard of proof, which Hodgson JA identified in Ho as

being not just regarding the question “what are the probabilities on the limited material which the court

has, but also whether that limited material is an appropriate basis on which to reach a reasonable

decision.”842 The rule entitles the Court “more readily to draw any inference fairly to be drawn from the

other evidence by reason of the opponent being able to prove the contrary had the party chosen to

give or call evidence.”843 The rule is capable of acting against both parties of a proceeding regardless

of who bears the burden of proof.844

There are a number of important qualifications in relation to the rule in Jones v Dunkel.845 Firstly, the

inference in favour of the other party must be able to be drawn from evidence brought by that party in

any case. As stated by Heydon, ‘[t]he rule cannot be employed to fill gaps in the evidence, or to

convert conjecture and suspicion into inference.”846 In Insurance Commissioner v Joyce,847 Dixon J

held that the circumstances of the rule “does not authorize the court to substitute suspicion for

inference or to reverse the burden of proof or to use intuition instead of ratiocination.”848 849 The Supreme

Court of New South Wales in Dilosa v Latec Finance Pty Ltd (No 2),849 held the context of the rule “will

not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the

opposing party.”850 The High Court held in Lopes, “[t]he failure of a party to give evidence may, in

some cases, tend to strengthen an inference to which proved facts give rise: but it cannot of itself lead

to any inference.”851 A failure by an appellant to call evidence therefore merely “gives the Court more

837 Ibid, at 929838 (1994) 101 CLR 298 at [22]; See also Shalhoub v Buchanan [2004] NSWSC 99; and Manly Council v Byrne [2004] NSWCA 123 at [51]839 (2001) 51 NSWLR 572840 (1774) 1 Cowp 63841 Ibid, at 65; Heydon, op cit, at 45, (2001) 51 NSWLR 572 at [15] and [16]842 Heydon, op cit, at 45; (2001) 51 NSWLR 572 at [14]843 Heydon, op cit, at 40, and quoted with approval by Heery J in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136 at [50]844 Ho v Powell (2001) 51 NSWLR 572 at [16]845 The qualifications listed here are those relevant to this thesis and are not exhaustive. For example, other qualifications include the rule cannot be applied to the “non-calling of a witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness, or where the missing witness would be expected to be called by one party rather than another” - Payne i/Par/cer [1976] 1 NSWLR 191 at 201-202; and that the “rule has no application if the failure to call the witness is satisfactorily explained or readily understood” - Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336, at 343.846 Heydon, op cit, at 40 to 41; Commonwealth Director of Public Prosecutions v Hart [2010] QDC 457 at [32]847 (1948) 77 CLR 39848 Ibid, at 61849 (1966) 84 W.N. (Part 1) (NSW) 557850 Ibid, at 582851 (1970) 44 ALJR 412 at 418

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confidence in drawing in favour of the respondent inferences open from the facts proved in

evidence.”852

More recent cases have taken an equivalent approach. As stated by Fullagher J. in Department of

Health v Arumugam,853 "[i]t can enable already available inferences to be drawn against dishonest

explainers with greater certainty, but that is all.”854 The Federal Court in Lek v Minister for Immigration,

Local Government and Ethnic Affairs,855 similarly held that “the principle applies only if there is already

material that would support the drawing of that inference.”856

Secondly, the rule applies only where a party is “required to explain or contradict” something, that is,

where evidence is given of facts “requiring an answer,” that the rule applies.857 As described by Moffitt

JA in Nuhic v Rail & Road Excavations,858 it applies in circumstances where absent evidence by a

defendant, “the case of the plaintiff is left somewhat as it was at the beginning, based on inferences

against each defendant.”859

Thirdly, the tribunal of fact must be able to conclude that the party who fails to give evidence

“probably would have knowledge.”860 As Fisher J noted in Trade Practices Commission v Nicholas

Enterprises Pty Ltd (No 2J,861 “[t]his inference is particularly appropriately drawn when the facts are

peculiarly within the knowledge of the silent party.”862

Importantly, the Courts have the ability, but are not compelled, to draw inferences if these matters are

established.863 864

6. Inference in expert evidenceThe Courts have acknowledged that not only do they draw inferences in determining matters at trial,

but so too do expert witnesses in the evidence they present. In Allstate Life Insurance Co v Australia

and New Zealand Banking Group Ltd (No 5),864 Lindgren J accepted a definition of opinion as “an

inference from observed and communicable data.”865 The same definition was accepted by Branson J

in Quick v Stoland Pty Ltd,866 and by the High Court in Dasreef Pty Ltd i/ Hawchar.867

In R v Tang,868 Spigelman CJ held that “knowledge” for the purposes of s79 of the Evidence Act

means:

852 Ibid, at 422853 [1988] VR 319854 Ibid, at 330855 (1993) 43 FCR 100856 Ibid, at 124857 Heydon, op cit, at 41; drawing on the words of Windeyer J. in Jones v Dunkel (1959) 101 CLR 298 at 322 and as quoted with approval in Fonterra Brands (Australia) Pty Ltd v Viropoulos (No 3) [2015] FCA 1050 at [103]858 [1972] 1 NSWLR 204859 Ibid, at 221860 Payne v Parker [1976] 1 NSWLR 191 at 202 per Glass JA861 (1979) 26 ALR 609862 Ibid, at 639863 Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 at 267864 (1996) 64 FCR 73865 Ibid, at 75866 (1998) 87 FCR 371 at 373867 (2011) HCA 21 at [53], Contrast Rv Perry (No. 4) (1981) 28 SASR 119 at 124 per Cox J868 [2006] NSWCCA 167; (2006) 65 NSWLR 681 at [138]

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more than subjective belief or unsupported speculation. The term applies to any body of

known facts or to any body of ideas inferred from such facts or accepted as truths on ‘good

ground’.869 870

Because of the accepted inferential nature of much expert witness evidence, the Courts have

imposed similar requirements upon the experts to those said to apply to judicial reasoning itself.

Fullagher J held \r\ Rv Jenkins; Ex parte Morrison (No 2),670 that an expert witness must “explain the

basis of theory or experience.”871 Various judgments have referred to the need for expert evidence to

“consist of argument as to the conclusions that should be drawn from the facts,” rather than mere

advocacy.872 In this regard, the Courts require that the facts which underpin an expert’s opinion (which

constitute factum probans) must be expressly stated for the judge or jury to make a proper

assessment of the opinion.

The decision of the High Court in Paric v John Holland (Constructions) Pty Ltd873 qualifies the

requirements, in that whilst the facts upon which an opinion is based must be proved by admissible

evidence, “that does not mean that the facts so proved must correspond with complete precision to

the proposition on which the opinion is based.”874 Anderson J in Pownall v Conlan Management Pty

Ltd,875 held that “[ejxpert evidence ... must be comprehensible and reach conclusions that are

rationally based. The process of inference that leads to the conclusions must be stated or revealed in

a way that enables the conclusions to be tested and a judgment made about the reliability of them.”876

In HG v The Queen,877 Gleeson CJ said of an expert’s evidence “[i]t would have required identification

of the facts he was assuming to be true, so that they could be measured against the evidence; and it

would have required or invited demonstration or examination of the scientific basis of the

conclusion.”878 In that case, His Honour considered the expert evidence to be “a combination of

speculation, inference, personal and second-hand views as to the credibility of the complainant, and a

process of reasoning which went well beyond the field of expertise.”879

Heydon JA (as His Honour then was) in Makita (Australia) Pty Ltd v Sprowles,880 held in favour of

there being a "Basis Rule” in the Australian law governing expert evidence, in that “it must be

established that the facts on which the opinion is based form a proper foundation for it; and the

opinion of an expert requires demonstration or examination of the scientific or other intellectual basis

of the conclusions reached.”881 His Honour held that experts have a prime duty to “furnish the trier of

869 Ibid, at [138], with reference to Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) at 590870 [1949] VLR 277871 Ibid, at 303872 Clark v Ryan (1960) 103 CLR 486 at 492 per Dixon CJ; Polivitte Ltd v Commercial Union Assurance Co Pic [1987] 1 Lloyd's Rep 379 at 386 per Garland J; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 350 to 351; ULV Pty Ltd v Scott (1990) 19 NSWLR 190 at 205; Re J (1990) FCR 193 at 226 per Cazalet J873 [1985] HCA 58; 59 ALJR 844874 Ibid, at [9]875 (1995) 12 WAR 370876 Ibid, at 389 - 390877 (1999) 197 CLR 414878 Ibid, at 428879 Ibid, at 428880 (2001) NSWCA 305881 Ibid, at [85]

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fact with criteria enabling evaluation of the validity of the expert’s conclusions.”882 Similarly, Heydon JA

in Rhoden v Wingate883 held that “[t]he opinion evidence may be admitted if there is evidence which, if

accepted, is capable of establishing the truth of the assumptions.”884

In Australian Securities and Investments Commission v Rich885 (Rich), Spigelman CJ held that an

expert’s ““prime duty” is fully satisfied if the expert identifies the facts and reasoning process which he

or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the

opinions expressed.”886 His Honour also clarified that these matters go not to admissibility, but to

weight (as subsequently confirmed in various cases including by the majority of the High Court887), in

that:

The issue for a trial judge is whether the opinion expressed to be based on the facts proved

or assumed is correct. In determining this issue, the judge will have regard, amongst other

things, to the reasoning process (based on those facts) used by the expert. ... Once the

opinion is capable of being based on the proved facts, it is admissible.888

These requirements are reinforced by the Federal Court’s Expert Evidence Practice Note, which

annexes the Harmonised Expert Witness Code of Conduct approved by the Council of Chief Justices'

Rules Harmonisation Committee889 890 (Expert Witness Code). The Expert Witness Code seeks to deal

with many of the issues inherent in inferential reasoning (and provide transparency around any

inferential process adopted by the witness, by adopting requirements for expert reports that include:

• The assumptions and material facts on which an opinion is expressed, and any literature or

other materials, examinations, tests or other investigations, or the acceptance of another

person’s opinion, relied on or utilised in support of such opinion.

• A declaration that the expert has made all the inquiries that the expert believes are desirable

and appropriate (save for any matters identified explicitly in the report), and that no matters of

significance which the expert regards as relevant have, to the knowledge of the expert, been

withheld from the Court.

• Any qualifications on an opinion expressed in the report or whether any opinion is not a

concluded opinion because of insufficient research or insufficient data or for any other

reason.800

882 Ibid, at [59]883 [2002] NSWCA 165884 Ibid, at [86]885 [2005] NSWCA 152886 Ibid, at [92], [105] and [132]887 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [16], [85] and [87]; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [7]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 536 at [61]; Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532 at [176] and [177]; Taub v R. [2017] NSWCCA 198 at [31]888 [2005] NSWCA 152 at [136]889 Federal Court of Australia Expert Evidence Practice Note (GPN-EXPT), J L B Allsop, Chief Justice, 25 October 2016, http://www.fedcourt.qov.au/law-and-Dractice/Dractice-documents/practice-notes/qDn-expt (accessed on 5 November 2017)890 Ibid, at Annexure A, paragraph 3

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7. Statutory guidance for inference drawingSections 58 and 183 of the Evidence Act provide that if a question arises about either:

• the relevance of; or

• the application of a provision of that Act (such as that opinions stated in a report are based on

specialised knowledge and experience,891 or the business records exemption to the hearsay

rule892) in relation to,

a document or thing, the Court may examine the document or thing, and draw any reasonable

inferences from it. In relation to relevance, such an inference may include (without limitation) the

document or thing’s authenticity or identity. In relation to questions about the application of a provision

of the Evidence Act, the Court may also draw inferences from other matters from which inferences

may properly be drawn.

These provisions are replicated in the evidence legislation of various other Australian jurisdictions.893 894

How the authenticity of a document or thing can be inferred has been the subject of consideration in a

number of cases. The importance of this derives from the needs to establish authenticity of a

document before its admissibility can be considered. As the Court held in Rich, there would be an:

absurdity for the law to dispense on a general basis with the need to prove the authenticity of

a document, for that would “put the court entirely in the hands of whatever a document which

a party chose to tender purported to be, subject to whatever opportunity another party had of

overcoming its apparent effect.,%94

The premise commonly adopted by the Courts as a starting point is that establishing authenticity

cannot be achieved solely by drawing inferences from the face of a document where there is no other

evidence to indicate provenance.895 In Trimcoll Pty Ltd v Deputy Commissioner of Taxation,896 the New

South Wales Court of Appeal held:

the relevance of a document in the particular proceedings may depend on the identity of its

author, when it was created and whence it was extracted, whereas its authenticity depended on

whether the document is what it purports to be; there is no entirely clear dividing line between

questions of authenticity and identity and each may provide a basis for admissibility897

891 Owners of Strata Plan 58041 v Temelkovski [2014] FCA 2962 at [69] in relation to s 79 of the Evidence Act 1995 (Cth)892 GlaxoSmithKline Consumer Healthcare Investments (Ireland) (No. 2) LtdvApotex Pty Ltd [2016] FCA 608 at [342] in relation to s 69 of the Evidence Act 1995 (Cth)893 s 58 Evidence Act 1995 (No 25) (NSW); s 58 Evidence Act 2008 (Vic); s 58 Evidence Act 2001 (Tas); s 58 Evidence Act 2011 (ACT); s 58 Evidence (National Uniform Legislation) Act (NT); s 183 Evidence Act 1995 (No 25) (NSW); s 183 Evidence Act 2008 (Vic); s 183 Evidence Act 2001 (Tas); s 183 Evidence Act 2011 (ACT); s 183 Evidence (National Uniform Legislation) Act (NT)894 (2005) 216 ALR 320 at [116], quoting Bryson J in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 at 315. See also Collins v Department of Finance & Deregulation (No. 3) [2012] FMCA 860 at [29]895 Australian Securities and Investments Commission v Rich (2005) 216 ALR 320 at [117], with reference to Bryson J in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309896 [2007] NSWCA 307897 Ibid, at [30]

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In Collins v Department of Finance & Deregulation (No. 3),898 the Court held that “[t]he nature of the

document, and the detail that it contains ... would enable the Court to infer from the face of the

document that it is authentic.”898 899

In relation to inferences drawn from a document or thing in the context of questions as to the

application of other provisions of the Evidence Act, Schmidt J in Itaoui v Yamaha Motor Finance

Australia Pty Ltd900emphasised the significance that where the relevant section applies, the Court may

also draw reasonable inferences from other matters. In that cases this was held to include the oral

evidence of the appellant, the result of which was to find:

The conclusion that the documents had to be given but little weight in the face of the other

evidence which his Honour dealt with, was open.90'

The Evidence Act, at s 54, also relevantly provides for the drawing of any reasonable inferences from

what the Court sees, hears or otherwise notices during a demonstration, experiment or inspection.902

In Australian jurisdictions where uniform evidence provisions have not been adopted, there are

various different provisions that relate to the capacity of Courts to draw an inference. Matters which

relate to admissibility of documentary evidence include the ability of the Court to draw reasonable

inferences from the form or contents of the document in which the statement is contained, or from any

other circumstances.903

In addition, these provisions also deal with weight to be attached to evidence. Weight is to be

estimated having regard to the following matters common to the legislation of each jurisdiction:

(a) All the circumstances from which any inference can reasonably be drawn as to the accuracy

or otherwise of the statement.

(b) Whether or not the statement was made, or the information recorded in it was supplied,

contemporaneously with the occurrence or existence of the facts stated or to which the

information relates.

(c) Whether or not the maker of the statement, or the supplier of the information recorded in it, or

any person concerned with making or keeping the document containing the statement, had

any incentive to conceal or misrepresent facts.904

The Evidence Act 1906 (WA) s 79D also includes the following additional considerations in this

regard:

(a) Whether or not the information in the statement was of a kind which was collected

systematically.

(b) Whether or not the information in the statement was collected pursuant to a duty to do so.

898 [2012] FMCA 860899 Ibid, at [32]900 [2009] NSWSC 1363901 Ibid, at [17]902 As also provided for in s 54 Evidence Act 1995 (No 25) (NSW); s 54 Evidence Act 2008 (Vic); s 54 Evidence Act 2001 (Tas); s 54 Evidence Act 2011 (ACT); s 54 Evidence (National Uniform Legislation) Act (NT)903 Evidence Act 1929 (SA) s 34C(5); Evidence Act 1906 (WA) s 79C(5)(a); Evidence Act 1977 (Old) s 96(1)904 Evidence Act 1929 (SA) s 34D; Evidence Act 1906 (WA) s 79D(1 )(a) and (b); Evidence Act 1977 (Old) s 102

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(c) Where the statement wholly or in part reproduces or is derived from information from one or

more devices, the reliability of the device or devices.

(d) Where the statement reproduces or is derived from any information, the reliability of the

means of reproduction or derivation.905

Further, the Western Australian legislation provides that where there is a dispute over whether an

event occurred, and any system has been followed to record the happening of events of that type,

oral or other evidence to establish that there is no record of the happening of the event is admissible

to prove that the event did not happen. A court may require production of the whole or part of the

record concerned. The Court still has the power to exclude such evidence if it is produced, and upon

a failure by a party to produce the applicable records, the Court may reject the evidence. In estimating

the weight to attach to such evidence, the Court shall have regard to similar matters referred to at

paragraphs (a) and (b) above, but also whether any person concerned with the making or keeping of

the relevant record had any incentive to omit recording the happening of the event in question.906

8. Conclusion to Chapter 7This Chapter analysed the how general case and statute laws govern the drawing of inferences,

particularly in civil trials. Of direct relevant to the findings on Research Question 2, the Courts have

laid down clear principles in relation to appropriate circumstances for inferences. These apply in

circumstances of what is reasonable and on the basis of objective facts. An inference (factum

probandum) must have a basis in proven, objective facts (factum probans). The proposed inference

must be more than merely plausible and be more probable or of greater likelihood than any alternative

inference that may be drawn. These factors should be considered on a continuum, and are in contrast

to speculation, conjecture or guesswork.

The Courts have also laid down clear principles about the application of the balance of probabilities

standard of proof to inferential reasoning in civil trials, including how this standard applies with regard

to the gravity of the consequences flowing from a particular finding. Specific principles have also been

established where inferences apply in relation to prospectant and retrospective evidence and proof of

custom, as well as principles in relation to adverse inferences and a tactical burden in circumstances

where parties fail to call evidence to rebut that of the other party.

The Courts (in case law and guidelines) have also developed principles relevant to the presentation of

evidence by expert witnesses. Courts can adopt a consistent approach to their assessment of the

validity of inferences drawn by expert witnesses, by scrutinising these through the same principles

that judges themselves apply in their inferential reasoning.

The Evidence Act empowers the Courts to determine admissibility and weight to be afforded to

documentary evidence, having regard to other evidence such as the oral evidence of the opposite

party. This may become relevant where the Court has to consider the authenticity of archival records

905 Evidence Act 1906 (WA) s 79D(1 )(c) to (g)906 Ibid, s 79F

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having regard to the context and genre considerations discussed in Chapter 4. There are also a

number of statutory approaches taken across various Australian non-uniform evidence legislation

jurisdictions, which are useful concepts to have regard to in discretionary considerations regarding the

weight to be afforded matters in inferential reasoning, in light of the problems of the archive.

Importantly, these principles apply across many and various areas of law. For the most part, they are

applied consistently (and where not applied consistently, this appears to have been largely resolved in

the consensus of subsequent and binding precedent). This analysis therefore supports an affirmative

finding in relation to Research Question 2. These clear principles also provide a useful

commencement point for the relevant principles in the Inference Guidelines, including as a foundation

for those matters that apply in relation to native title determinations specifically, which are the subject

of Chapter 8.

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Chapter 8 - Inference drawing in native title determinations - successes and challenges

Overview of Chapter 8This Chapter provides an analysis of the approaches taken by the Federal Court, the Full Federal

Court, the High Court, and in some instances State Courts, to inferential reasoning relevant to the

connection requirements in a native title determination. Where equivalent issues are at stake, the

analysis also includes reference to determinations from other jurisdictions, particularly Canada.

This Chapter is not intended to capture every instance of judicial inference in native title

determinations, as to do so would far exceed the limits applicable to this thesis. The focus is on

identifying clear principles that have emerged, both in general terms and how specific issues were

approached, in reaching findings on connection, so that these can be considered in the development

of the Inference Guidelines. The focus also seeks to strike a balance between the landmark, earlier

native title decisions which have influenced the Court’s approach in subsequent cases, and more

recent decisions as indications of the most current approaches taken to the task.

Part 1 of this Chapter sets out instances where the Courts have identified some of the specific issues

that create evidentiary challenges for native title claimants (in addition to those already noted

elsewhere in this thesis) and where the Courts have emphasised the need to draw inferences as a

remedy for these difficulties.

Part 2 analysis the key issues the Courts have set out as foundational to inferential reasoning in

native title claims. Part 3 presents the "Gumana Principles” enunciated by Selway J in Gumana and

how these have been adopted by Courts since the date of that judgment. Part 4 analyses the

approach taken by Courts to drawing inferences at the relevant points in time identified in the

Gumana Principles. Parts 5, 6 and 7 address the issues specific to assessing genealogical evidence,

evidence of geographic boundaries, and expert evidence respectively. Part 8 identifies instances of

where the evidence was insufficient to found inferences in favour of a successful native title

determination, and analyses the bases for this.

Part 9 builds on Part 8, in analysing how overlapping and competing native title claims raise particular

complexities that the Court will need to consider in the inferential process. Parts 10 and 11 then

provide an analysis of specific issues relevant to inferential reasoning in disregarding prior native title

extinguishment under the Native Title Act, and adverse inferences and the tactical burden

respectively. This Chapter then concludes in the usual way with a summary of the issues arising from

the analysis, which will feed into the Inference Guidelines in Chapter 9.

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Overall, the native title jurisprudence provides a number of sound and clear principles which can be

adopted in the Inference Guidelines.

1. Acknowledgement of challenges and need for inferenceThe challenges in the evidence base for native title claimants has been identified in numerous

judgments. Lee J in Ward noted the need to interpret evidence having regard to “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.”907 Olney J in

Yarmirr, identified similar challenges, in that “[a]ny proceeding in which the Court is required to make

findings as to traditional laws and customs practised more than 150 years ago must necessarily rely

upon evidence other than that of the personal observations of witnesses.”908 Nicholson J in Daniel

more expansively set out the applicable challenges, as quoted by the ALRC report and set out in Part

5 of Chapter 2.

Similarly, consistent with the issues discussed in Chapter 4, on appeal Merkel J in Yarmirr FC

identified the desirability “for the courts to consider whether the historical record or account of

observers at the time, whether trained or untrained, is not invalidated by a particular preconception,

bias or prejudice of the author.”909 These issues were also identified by Black CJ in Yorta Yorta FC,

where His Honour urged caution regarding a reading of archival records of observations of Aboriginal

people in mid-colonial times, in that “[t]he external and casual viewer of another culture may see very

little because the people observed may intend to reveal very little to an outsider, or because the

observer may be looking at the wrong time, or because the observer may not know what to look

for.”910

Lindgren J noted the same issues in Harrington-Smith on behalf of the Wongatha People v State of

Western Australia (No 9J911 (Wongatha No 9), describing these as a “conundrum” created by the

proliferation of “alien observers,” the absence of pre-contact records, “and the post-contact...

recorders could document only a situation already disturbed ... as a result of the European

influence.”912

Other judges have been vigilant of the influence of their own, equivalent, preconceptions. Madgwick J

in Gale v Minister for Land & Water Conservation (NSW)9™ (Gale), noted that “as a non-Aboriginal

lawyer, I may be ethnocentrically over-attracted to the writings of white authority figures ...

themselves possibly even at risk of ethnocentric over-attraction to written records.”914 Similarly in

907 (1998) 159 ALR 483 at 504908 (1998) 82 FCR 533 at [21]009 [1999] FCA 1668 at [351]. Mansfield J made similar comments in Risk v Northern Territory of Australia, [2006] FCA 404 at [135], with reference to Daniel v State of Western Australia [2003] FCA 666 at [149]. See also Shaw v I/Vo//'(1998) 83 FCR 113 at 130 to 131, and Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 at [365]910 [2001] FCA 45 at [58]. A similar approach was taken by Merkel J in Rubibi Community v State of Western Australia [2001] FCA 607 at [37]911 [2007] FCA 31912 Ibid, at [349]913 [2004] FCA 374914 Ibid, at [43]

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Bennell, Wilcox J noted the need to “make allowances for the author’s (and one’s own) assumptions

and prejudices, including any tendency to view the Aboriginal society through a Eurocentric lens.”915

To mitigate these and other challenges, the Courts have been willing to draw inferences relevant to

connection in native title determinations. As noted in the introduction to this thesis, Kirby P (as he then

was) identified such challenges in Mason, and on the basis of them favoured a common sense

approach because “[t]he common law, being the creation of reason, typically rejects unrealistic and

unreasonable principles.”916 His Honour therefore found that, had there not been other evidentiary

challenges, matters relevant to connection could have been inferred and that “[i]n more traditional

Aboriginal communities the inference will be quite easily drawn.”917

Thus in Narrier, Mortimer J held that in native title cases there is a greater than usual “role for

inferential reasoning, because of the passage of time between the circumstances at or before

sovereignty, and the circumstances prevailing at the time the Court must determine,” and “the paucity

and nature of any broadly contemporaneous evidence” concerning the historical situation.918 Similarly

Her Honour held in Dempsey, that “[ejven with efforts at obtaining preservation evidence, the

knowledge of the old people of any claimant group can only reach back so far. There will be a gap in

time, which must be filled — if it can be filled — by the drawing of inferences.”919

The Canadian Courts have also developed significant jurisprudence surrounding the acknowledgment

of these issues. In Hamlet of Baker Lake v Minister of Indian Affairs,920 Mahoney J held that relevant

evidence was extremely meagre by virtue of its subject matter and the limited records made of the

claimants’ history, as:

Their resources did not interest early traders; their nomadic ways and tiny camps did not

arouse the enthusiasm of missionaries. Snow houses leave no ruins and, until the proto-

historic period, most of their tools and weapons were made of local materials which, like

themselves, their dogs and tents, were organic and, hence, biodegradable. ... Two or three

witnessed incidents may well reflect a reality of countless unwitnessed incidents.921

Lamer CJ of the Canadian Supreme Court identified in ft v Van der Peel922 (Van der Peet) that a court

should “interpret the evidence that exists, with a consciousness of the special nature of aboriginal

claims, and of the evidentiary difficulties in proving a right which originates in times where there were

no written records of the practices, customs and traditions engaged in.”923 Similarly, in Delgamuukw v

British Columbia924 (Delgamuukw CSC) Lamer CJ noted the responsibility of the Court to “adapt the

laws of evidence so that the aboriginal perspective on their practices, customs and traditions and on

their relationship with the land, are given due weight by the courts. In practical terms, this requires the

915 [2006] FCA 1243 at [106]916 (1994) 34 NSWLR 572 at 588917 Ibid918 [2016] FCA 1519 at [389] and [390]919 [2014] FCA 528 at [132]; see also CG (Deceased) on behalf of the Badima People v State of Western Australia [2015] FCA 204 at [17] per Barker J920 (1919) 107 DLR (3d) 513921 Ibid, at 540922 [1996] 2 SCR 507923 Ibid, at [68]924 (1997) 153 DLR (4th) 193

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courts to come to terms with the oral histories of aboriginal societies, which, for many aboriginal

nations, are the only record of their past.”925 926

2. Foundations for inferential reasoningA qualification by Lamer CJ in Van der Peef to the remarks referred to in Part 1 of this Chapter

provides a useful frame in which to consider (and perhaps temper) the foundations for inferential

reasoning in native title cases. His Honour found “a court must take into account the perspective of

the aboriginal people claiming the right,” but that these perspectives “must be framed in terms

cognizable to the Canadian legal and constitutional structure,” namely the perspective of the common

law as “[t]rue reconciliation will, equally, place weight on each.”026

In this sense, the Australian Courts have been careful to ensure that legally justifiable approaches are

taken to inferential reasoning. Notwithstanding the special nature of the evidence, there still must be

evidence in support of and forming a foundation for the inference. Thus Gleeson CJ, and Gummow

and Hayne JJ in Yorta Yorta HC held that whilst the native title claimants may be confronted with

difficult problems of proof and will therefore invite the Courts to draw inferences as to the situation in

earlier times, “the difficulty of the forensic task which may confront claimants does not alter the

requirements of the statutory provision.”927 Their Honours therefore held that “[mjuch will... turn on

what evidence is led to found the drawing of such an inference and that is affected by the provisions

of the Native Title Act.”928 In the same manner, Finn, Sundberg and Mansfield JJ held in Bodney v

Bennell929 (Bodney), that “the evidence must be capable of supporting an inference of communal

ownership of native title derived from the community’s laws and customs.”930

Similarly, in De Rose O’Loughlin J held that anything other than an inferential approach in the face of

the incomplete historical record would place a “manifestly oppressive” burden of proof on the

claimants, who had a wholly oral tradition that was traceable for only 3 to 4 generations.931 However,

His Honour held that such inferences were subject to there being “a proper foundation for me to do so

... and the best evidence available provides some support for the presence of that connection in the

past (traceable by various means such as ancestors, marriage, migration and incorporation and even

tribal disputes and wars).”932

Barker J’s judgment in Badimia highlights the need for the Court to consider the evidence as a whole,

having regard to the evidence presented by the claimants balanced against conflicting expert

925 Ibid, at [84]926 [1996] 2 SCR 507 at [49] and [50]. Followed by Lamer CJ in Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at [82]927 (2002) 214 CLR 422 at [80]028 Ibid. McIntyre argues the High Court prescribed an “Inference of Continuity,” whereby “[t]he evidence as a whole must lead to an inference that the laws and customs are those of a normative system of a society which existed at the time of the assertion of British sovereignty.” McIntyre, G. “Native Title Rights after Yorta Yorta” [2002] JCU LawRw 9http://www.austlii.edu.aU/au/iournals/JCULawRw/2002/9.html (accessed 9 January 2018)929 [2008] FCAFC 63930 Ibid, at [152], with reference to Northern Territory of Australia vAlyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [80]931 [2002] FCA 1342 at [570]. Mansfield J held similarly in Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [94]932 [2002] FCA 1342 at [570], Upheld on appeal by Wilcox, Sackville and Merkel JJ held in De Rose v State of South Australia [2003] FCAFC 286 at [259]

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evidence (including differences between experts) and a conclusion reached based on the drawing of

inferences and on the balance of probabilities.933 His Honour held that “[i]n some cases, the direct

evidence of witnesses is of a detail and depth, that is, a quality, that enables the Court to reasonably

infer, on the basis of the direct Aboriginal evidence and reputation in the relevant Aboriginal

community, that indeed the person had a Badimia ancestry or a traditional association with the claim

area.”934 However, here Barker J found “there is a lack of probative evidence of to support a finding of

traditional association with the claim area,”935 and:

In drawing inferences, it is understood that, in a proceeding such as this, like any proceeding

in this Court not affected by statutory presumptions or other requirements, the Court may only

draw reasonable inferences, that is to say inferences reasonably drawn from facts proved in

the proceeding.936

The requisite strength of the evidentiary foundations, particularly in relation to inferences leading to a

negative determination, was discussed by Black CJ (in the minority) in Yorta Yorta FC. There His

Honour commented in a manner which suggests the application of a sliding scale of probabilities, as

given the “irreversible consequences for Indigenous people of a finding, that long ago, their ancestors

ceased to acknowledge traditional law and observe traditional customs,”937 such a conclusion must be

based on “very strong foundations.”938 Further, there is a need to assess evidence beyond “the

historical snapshot of adventitious content, which may in any event reveal little or nothing of a process

of adaptation and change then taking place. It may well be necessary to have regard to events over a

long period if misconceptions about adaptation and change are to be avoided.”939

In relation to how such evidence is assessed, a number of cases adopt common sense and logical

touchstones, similar to those in the general law discussed in Chapter 7. Madgwick J in Gale held that

“[ejvidence of ‘oral history’, oral traditions, may well have an important role in that process of

inference. The worth and limitations of evidence of oral traditions are, in general, matters of some

controversy in historiography. ... a judge can do little else but try to proceed on a broad, common

sense basis.”940 Similarly, Lindgren J in Wongatha No 9 held that “[t]he proper drawing of inferences

depends on the application of logic and human experience to the facts that are proved by admissible

evidence.”941

What will fall short of a basis for inference is also consistent with the general law. In Yorta Yorta,

Olney J held that “the Court will have regard only to evidence which is relevant, probative and cogent.

933 [2015] FCA 204 at [115] - [117]934 Ibid, at [313]935 Ibid [295]936 Ibid, at [348]937 (2001) 180 ALR 655 at [63]938 Ibid, at [85]939 Ibid, at [59] to [61] and [72] - [74]940 [2004] FCA 374 at [42]941 [2007] FCA 31 at [342]

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In particular, pure speculation ... must be disregarded.”942 Similarly, Mortimer J in Dempsey declined to

make an inference pressed for by a party on the basis that it would be engaging in speculation.943

In relation to what is appropriately the subject of review on appeal, the Full Federal Court has drawn a

clear distinction between facts from which inferences may be based, and the inferences themselves.

Wilcox, Sackville and Merkel JJ in De Rose FC considered O’Loughlin J in De Rose erred in drawing

an inference that the claimants had failed to maintain a connection with the claim area.944 Their

Flonours held that the subject matter of an inference drawn was more readily appellable than the

findings of fact on which the inference relied, and that O’Loughlin’s findings:

cannot be regarded as credit-based findings of fact that are entitled to deference on appeal.

Rather, they are inferences drawn from other findings of fact and are flawed by the errors and

omissions to which we have referred. As a consequence, the question of... the appellants’

connection with the claim area by those laws and customs, requires further consideration.945

3. Gumana PrinciplesPerhaps the most clearly enunciated statement of principle for the drawing of inferences in native title

determinations was set out in the judgment of Selway J in Gumana. The "Gumana Principles” provide

that “an inference that a tradition or custom has existed at least since the date of settlement,” can be

drawn where:

• there is a clear claim of the continuous existence of a custom or tradition that has existed at

least since settlement; and

• this is supported by

• creditable evidence from persons who have observed that custom or tradition; and

• evidence of a general reputation,

that the custom or tradition had “always” been observed; and

• there is an absence of evidence to the contrary.946

Flis Honour also emphasises that this “does not mean that mere assertion is sufficient to establish the

continuity of the tradition back to the date of settlement.”947

The Gumana Principles have since been adopted by numerous cases.948 However, Strelein suggests

that this has approach has been diminished by the findings of Mansfield J in Risk and Finn, Sundberg

942 [1998] 1606 FCA at [17] and [21]943 [2014] FCA 528 at [807], having regard to Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [84] and Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170944 By according undue weight to a perceived failure by the claimants to discharge their traditional responsibilities for the claim area, as well as an over-emphasis on a lack of physical contact with the claim area. Such undue weight failed to consider how such matters were accommodated by the traditional laws acknowledged and customs observed, and spiritual links with the land - [2003] FCAFC 286 at [315] - [329],945 Ibid, at [341]946 [2005] FCA 50 at [201]947 Ibid. Although at [202] His Honour refers to 1788, so he does not distinguish between sovereignty and first contact.948 Griffiths v Northern Territory of Australia (2006) 165 FCR 300 at [578]-[580] per Weinberg J; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No. 9) (2007) 238 ALR 1 at [341] per Lindgren J; Sampi v State of Western

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and Mansfield JJ in Bodney regarding the emphasis on assessing connection on a “generation by

generation” basis.949 However, such effects may be considered to be mitigated by various findings,

including Sundberg J’s decision in Neowarra where His Honour held that the requirement that laws

and customs have been passed down from generation to generation was satisfied, on the basis that:

Nearly all witnesses said they had received instruction about the laws and customs from their

parents and grandparents. The grandparents of the most senior witnesses would have

received comparable instruction in about 1875.950

On the basis of this, and the evidence that current laws and traditions are the same as those existing

prior to 1829, His Honour was able to “infer that the grandparents of the senior witnesses received

their instruction in the same way as the witnesses had received theirs.”951

Such effects may also be alleviated by the conceptual approach outlined by Bennett J in AB

(deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4)952 (Ngarla). Her

Honour adopted the Gumana Principles but also emphasised the importance of contemporary

evidence that establishes contemporary normative rules, from which she stated the Court is “entitled

to draw inferences about the content of the traditional laws and customs at sovereignty” and that

“such a normative rule existed at sovereignty.”953 954 Arguably this approach lends itself to the

methodologies adopted by Black CJ in the minority in the Yorta Yorta FC, and in Ward, to identifying

the content of traditional law and custom in the present and tracing it back in time, as discussed in

Part 9 of Chapter 5.

The Gumana Principles and the manner in which they have been adopted in subsequent cases raises

a number of issues for further consideration, namely the alignment of these principles with the general

law “proof of custom,” and the omnipresent requirement of a lack of evidence to the contrary.

In relation to the first of these issues, Selway J set down a clear statement of principle of aligning of

matters of native title proof with customary rights under English common law.054 His Honour noted that

the relevant problem “is one that is well known to the common law. There are a number of

circumstances where it was necessary at common law to establish proof of custom dating back not

just to the 18th century, but to "time immemorial",” such as copyhold and prescription or ancient lost

grant.955 His Honour noted a similarity between such matters and evidence to prove Aboriginal custom

being the reliance on oral evidence, and that “[i]n practice those difficulties were ameliorated by the

readiness of the common law courts to infer from proof of the existence of a current custom that that

custom had continued from time immemorial.”956 His Honour noted the relevant rule was often

Australia [2010] FCAFC 26 at [63]-[65] per Mansfield and North JJ; AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [724] per Bennett J; Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132]-[134] per Mortimer J; and Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at [28] per McKerracher J.949 Strelein (2009a), op cit, at 140 -141950 [2003] FCA 1402 at [336]. Similarly, see Griffiths v Northern Territory of Australia [2006] FCA 903 at [584] per Weinberg J.951 Ibid952 [2012] FCA 1268953 Ibid, at [724]954 As discussed in ALRC Connection Report at 223 fn 82 and 83955 Gumana v Northern Territory of Australia and Others [2005] FCA 50 at [197]956 ibid, at [198]

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expressed in the negative such as "time whereof there is no memory of man to the contrary"957 (a link

to the next issue). His Honour thus held:

There is no obvious reason why the same evidentiary inference is not applicable for the

purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of

settlement and, indeed, the existence of rights and interests arising under that tradition or

custom ... Australian cases [post Milirrpum] would seem to have relied upon such inferences.958

Lindgren J described proof of custom as “retrospective continuance” in Wongatha No 9, and added

the qualification that for such inferences to be drawn “the shorter the period that has to be covered ...

the better.” 959 His Honour explained his approach to drawing such inferences of a pre-sovereignty

body of laws and customs involved looking “first for the earliest available evidence of laws and

customs as they existed after first contact,” although His Honour conceded that such records may in

some cases have been made long after first contact.960 This is discussed further in Part 4 below.

Various judgments have made reference to the Gumana Principles requirement of an absence of

evidence to the contrary.961 In Ward, Lee J held (prior to Gumana) that:

Unless there is evidence to the contrary, it may be inferred that when European settlement of

the claim area began some sixty years after sovereignty was asserted, the Aboriginal

inhabitants then in occupation of that area were connected to the land of the claim area and

with the Aboriginal people who occupied the claim area at sovereignty962

In Lake Torrens Overlap Proceedings (No 3)963 (Lake Torrens), Mansfield J held that “[wjhere

evidence of Aboriginal presence at sovereignty is unavailable (as is commonly the case), such an

inference is more readily drawn where there is a preponderance and weight of available evidence and

in the absence of contradictory evidence.”964 Weinberg found in Griffiths v Northern Territory of

Australia965 (Griffiths), that a lack of evidence to suggest rituals and ceremonies were suddenly

created or radically transformed allowed the drawing of a reasonable inference that “the indigenous

people who inhabited the Timber Creek region in about the middle of the nineteenth century, and who

957 ibid, at [199]-[200]958 [2005] FCA 50 at [201], with reliance on Hammerton v Honey (1876) 24 WR 603 at 604. Followed in Griffiths v Northern Territory of Australia [2006] FCA 903 at [578] - [580] and [642] per Weinberg J, in Bennell v State of Western Australia [2006] FCA 1243 at [457] per Wilcox J; in AB (deceased) on behalf of the Ngarla people v State of Western Australia (No 4) [2012] FCA 1268 at [724] per Bennett J; in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132] per Mortimer J; and in Narrier v State of Western Australia [2016] FCA 1519 at [315] per Mortimer J959 [2007] FCA 31 at [341], discussed further below in Part 4960 Ibid. His Honour made reference to the Wigmore on Evidence description of retrospective continuance, which provides that prior existence of an object, condition, quality, or tendency is some indication of its probable continuance at the later period, subject to the chances of intervening circumstances bringing the existence to an end, which may be the subject of evidence to raise a probability of change instead of continuance - Ibid, at [343], with reference to Wigmore on Evidence, 3rd ed, vol 2061 In addition to those discussed here, examples include Olney J’s judgments in Yarmirr v Northern Territory of Australia (No 2) [1998] FCA 771 at [88] and [98] and Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923 at [66]; RD Nicholson J’s judgment in Daniel v State of Western Australia [2003] FCA 666 at [428]; and Lindgren J’s judgment in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [347],962 (1998) 159 ALR 483 at 514963 [2016] FCA 899964 Ibid, at [95]965 [2006] FCA 903

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acknowledged and observed essentially the same laws and customs as do the present claimants, did

not simply invent them.”966

The “preponderance and weight of the available evidence,967 and the absence of any contradictory

evidence” in Alyawarr, enabled Mansfield J to draw a variety of inferences, regarding:

• The claimant group’s descent from the indigenous inhabitants of the claim area as at first

European contact and at the acquisition of sovereignty.

• Such people having inhabited the claim area continuously since European contact and

presence upon and occupation of the claim area at the date of sovereignty in similar manner.

• Aspects of traditional law and traditional custom observed by ethnographic works also

operating at and before sovereignty, which is particularly likely “when one considers the

intricacy of the system and the almost complete absence of European contact prior to

1871 ,”968

Absence of evidence to the contrary also has a role to play in consent determinations, where the

Court will still need to satisfy itself of the veracity of inferences relied on by the parties given the

judgment in rem nature of native title determinations. For example, in Lander v State of South

Australia,969 Mansfield J agreed with the State that:

the material supports the inference that the pre-sovereignty normative society has continued

to exist throughout the period since sovereignty, and ... there is nothing apparent in the

evidence to suggest the inference should not be made that the society today ...

acknowledges and observes a body of laws and customs which is substantially the same

normative system as that which existed at sovereignty.970

The case law provides a number of examples where the Court had to consider situations where there

was evidence to the contrary. In Croft on behalf of the Barngarla Native Title Claim Group v State of

South Australia,971 Mansfield J held he could infer that the laws and customs of Barngarla people

documented at or shortly after the time of early European contact in the late 1830s, existed at the time

of sovereignty, absent evidence to the contrary.972 However, His Honour noted, “[i]n this case, there is

a suggestion of evidence existing to the contrary,” which required assessment, namely a theory of

migration supported by ethnographic evidence and the evidence of an expert anthropologist who

himself suggested it constituted only “speculation,” albeit speculation “informed by parallel

experiences elsewhere.”973 Based on such matters, Mansfield J accepted on the balance of

probabilities, the inference should be drawn.974 His Honour accepted the submissions of the State and

the applicant that it was permissible to infer the content of the Barngarla land tenure system (and the

966 ibid, at [577]967 Namely unchallenged expert opinion, archaeological, ethnographic and historical material, and contemporary evidence.968 [2004] FCA 472 at [110]. See also [101] and [108]. His Honour noted that the Northern Territory accepted that in this instance the Court may well be able to draw many of these inferences, at [74969 [2012] FCA 427970 Ibid, at [48]. Similarly, see Lovett on behalf of the Gunditjmara People v State of Victoria (2007) FCA 474971 [2015] FCA 9972 Ibid, at [92]973 Ibid, at [703] to [708]974 Ibid, at [709]

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use offish traps) from the opinions provided by experts irrespective of the fact that there was no direct

evidence detailing the content of that system.975

However, there are also examples of the Court applying this test and finding there is sufficient

evidence to the contrary to negate the inference. In Badimia, Barker J accepted the submission of the

State that “it is one thing to infer that a named apical ancestor is a Badimia person in the absence of

documentary material and another to do so in the face of positive evidence to the contrary,” and that

the available documentary material and the Aboriginal evidence supported a finding of a lack of

association with the claim area at sovereignty.”976 Similarly Sackville J in Jango held the lack of

consistency of indigenous evidence in relation to a particular set of laws and customs diminished the

force of any inference that might be drawn that “the laws and customs described by the witness have

remained substantially intact since sovereignty.”977

Thus a lack of contrary evidence is an important factor for proof of connection. However, as is

apparent from the foundational principles set out in Part 2, and the bases on which claimants were

unsuccessful in Part 8, this alone is not sufficient and supporting creditable evidence of observation or

reputation (consistent with the Gumana Principles) is still required for a claim to succeed.

4. Assessments at the relevant points in timeMuch of what occupies the Court’s inferential reasoning (including in the application of the Gumana

Principles) is the assessment of the traditional law and custom, and normative society, status quo at

various points in time. These times are crucially at the acquisition of sovereignty and maintained to

the present day but also by virtue of the nature of the evidence at times when European contact was

sufficiently advanced to have created an archive and when matters are reasonably within living

memory (directly or passed down) of senior members of a claim group.

Due to the evidentiary issues involved, the relevant State or Territory parties have, on occasion, been

willing to concede that indigenous people occupied the claim area and practiced traditional laws and

customs at sovereignty, based on what is known from earliest contact. A concession of this nature

gives the Court the utility of only having to have regard to the situation at the later date.978

Absent such concessions, the Court must then consider what inferences may be drawn in relation to

the period between sovereignty and first contact with Europeans or the relayed experiences of living

witnesses.979 Occupation at and after sovereignty has been the subject of inferential reasoning in a

number of cases. In Yorta Yorta, Olney J was satisfied that despite a lack of direct evidence, it was

possible to infer occupation of the claim area at sovereignty based on settler observations and

archaeological evidence. His Honour held the “inference that indigenous people occupied the claim

area in and prior to 1788 is compelling,” based upon:

975 Ibid, at [126] and [197]976 [2015] FCA 204 at [216]977 [2006] FCA 318 at [504]978 Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 at [28] per Jessup J; Narrier v State of Western Australia [2016] FCA 1519 at [10] per Mortimer J979 e.g. in Members of the Yorta Yorta Aboriginal Community y State of Victoria [1998] FCA 1606 at [106]

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The early explorers recorded making contact with Aboriginals in the general vicinity of the

claim area as did the first settlers. The area is clearly well watered and fertile. There is

undisputed evidence in the form of burial sites, oven mounds and shell middens, particularly

along and near to the banks of rivers, which testify to the presence of people within the claim

area over a considerable period.980

However, His Honour held that there are limits on the extent to which such inferences can apply to

ongoing connection from sovereignty, with mere presence being insufficient proof of ongoing

traditional rights and interests or the geographical limits of native title holdings.981

Similarly in Wongatha No 9, Lindgren J identified obstacles to the drawing of an inference of

occupation of the claim area at sovereignty by ancestors of the claim group,982 notwithstanding His

Honour’s willingness to infer indigenous occupation at sovereignty from observations by early

explorers of indigenous people within the claim area.983 Such obstacles included evidence of

migration or ‘population shift’ from after European settlement, positive evidence that many of the

ancestors of the claimants came from areas outside of the claim area, and an absence of evidence of

long term association and stability of indigenous groupings with particular areas.984

However, inferences in relation to these matters have been able to be drawn in various judgments. In

Rubibi Community v State of Western Australia985 (Rubibi), Merkel J inferred prior use of an

Aboriginal law ground throughout the 19th century had since continued, based on evidence that the

“dislocation of Aboriginal communities only occurred after the Broome area was settled by non-

Aborigines late in the 19th century.”986 In Daniel, RD Nicholson J overcame a lack of documentary or

other evidence before the Court, by relying on expert evidence to infer that Aboriginal people who

occupied the claim area at European settlement (approximately 30 years after sovereignty) “were

connected to the land of the claim area and with the Aboriginal peoples who occupied those areas at

sovereignty.”987 Cooper J held in Lardil Peoples v State of Queensland988 (Lardil) that evidence from

older witnesses who had had contact with Lardil peoples who lived according to traditional law and

custom prior to 1914, together with expert evidence:

satisfies me that I might properly infer that the arrangements which I find existed as to the

occupation and use of the land and adjacent waters in 1914 were the same, or derivative

from, those arrangements under traditional laws acknowledged or traditional customs

observed by the original Lardil peoples at the time of sovereignty989

980 Ibid, at [25]981 Ibid, at [52]. Followed by Madgwick J in Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [120]. Contrast the finding of Mortimer J in Narrier v State of Western Australia [2016] FCA 1519 at [320] who held that habitual residence of ancestors in the claim area or not does not affect the ability to draw favourable inferences.982 [2007] FCA 31 at [350]983 Ibid, at [347]984 Ibid, at [347] and [348]985 [2001] FCA 607986 Ibid, at [79]987 [2003] FCA 666 at [428] and [429]988 [2004] FCA 2989891 bid at [102]

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Two cases in particular, namely Dowsett J’s judgment in Gudjala People (No 2) v Native Title

Registrar*90 (Gudjala) and Lindgren J’s judgment in Wongatha No 9 provide useful statements of

principle in relation to the drawing of inferences in relation to the observance of traditional laws and

customs and existence of a normative society at the relevant points in time. Lindgren J identified the

following two inferences the Court was being asked to draw in Wongatha No 9:

• An inference that certain activities and behaviour observed since first contact are a

continuation of pre-sovereignty activities and behaviour (an inference of retrospective

continuance).

• An inference that the activities and behaviour are attributable to pre-sovereignty and

continuing laws and customs (an inference of attribution).990 991

His Honour found that observable conduct such as “[ajvoidance of the use of the names of deceased

people, in-law avoidance, [and] not marrying people within certain skin groups”992 could found the

basis for such inferences, whereas other conduct, such as hunting, is equivocal in relation to the

potential to attribute its exercise as a traditional right.993 Lindgren J quotes Gleeson J in Mason who

similarly referred to fishing as “an activity which is so natural to people who occupy, or visit, coastal

regions, that some care needs to be exercised” in assessing such activities are the subject of

traditional laws and customs merely because they have been observed.994

Lindgren J noted that considerations relevant to an inference that presence and activity observed at

and since first contact is a continuation of pre-sovereignty presence and activity, include whether

Aboriginal people generally or a specific group were observed, whether the Aboriginal people

observed were transient or more settled in the claim area, and what conclusions may be drawn from

observations at one place about presence elsewhere.995 In addition, His Honour stated that “[i]n

relation to a practice or activity, the permissible drawing of inferences requires careful consideration of

the practice or activity, the frequency or rarity of its occurrence as observed, the circumstances of

earlier times in so far as they are known, and the general probabilities.”996 His Honour also noted that

“the semi-nomadic nature of indigenous life in the Western Desert until the migration and

sedentarisation that followed European settlement” creates additional complications for inferential

reasoning.997

In Gudjala, Dowsett J held that “[i]n some cases it will be possible to identify a group’s continuous

post-sovereignty history in such detail that one can infer that it must have existed at sovereignty

simply because it clearly existed shortly thereafter and has continued since.” Such circumstances

might allow an inference that laws and customs were unaffected by the assertion of sovereignty such

that they were “probably much the same as the pre-sovereignty laws and customs.”998 Such

990 [2009] FCA 1572991 [2007] FCA 31 at [342]992 Ibid993 Ibid, at [330]994 (1994) 34 NSWLR 572 at 574995 [2007] FCA 31 at [344]996 Ibid, at [345]9971 bid, at [1297]998 [2009] FCA 1572 at [30]

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circumstances can be assessed where “the continuous history of the claim group since the assertion

of British sovereignty is well-known,” for which His Honour gave the Torres Strait as an example.999

His Honour stated that in these circumstances, “[t]he evidence of actual events will demonstrate

continuity” between the pre-European contact society and the claim group, without the need to resort

“to a close examination of the societies and their laws and customs.”1000

However, Dowsett J also held that where there is an “absence of any recorded history of the society

and the way in which it has continued since the earlier “snapshot” of the society,” an alternate

approach is to establish continuity by inference through “examination of those societies and their laws

and customs at two or more points of time.”1001 In those circumstances, if sufficient is known of

circumstances at or around first European contact “to permit an inference that the claim group is a

modern manifestation of a pre-sovereignty society, and that its laws and customs have been derived

from that earlier society ... Such a case will involve, at some point, a comparison of the earlier and

later societies and their laws and customs.”1002

His Honour proceeds to acknowledge that most cases will involve elements of both approaches, and

that applicants may succeed in native title claims where there is evidence of:

• the existence of a society at or about European contact and its acknowledgement and

observance of laws and customs, followed by continuity, “the first, by available inference and

the second, directly;” and

• a pre-sovereignty society and its laws and customs, with genealogical links to the claim

group, and similar laws and customs, which “may justify an inference of continuity.”1003

Elsewhere His Honour found that little or no contact between indigenous and non-indigenous people

between sovereignty and a later date could found an inference there was “little change in the relevant

indigenous society until more intense contact occurred.”1004 1005

The Full Federal Court considered issues relevant to the drawing of such inferences, in Sampi on

behalf of the Bardi and Jawi People v State of Western Australia''005 (Sampi FC). In that case,

Mansfield and North JJ held that “the constitutional status and elaborate nature of the rules in

question make it improbable that the system arose in the relatively short period between sovereignty

and the time of the witnesses’ ‘old people’.”1006 Thus the Court held the claimant group had been

united by their acknowledgement of a common set of laws and observance of a common set of

customs since the time of sovereignty.1007 To do so, the Full Court relied on direct evidence of

subsidiary matters which assist in the drawing of inferences in support of the relevant society and its

normative system of laws and customs, such as “proof of the existence of songs about the sea

999 Ibid1000 Ibid, at [32]1001 Ibid, at [31] and [32]1002 Ibid, at [31]1003 Ibid, at [33]1004 Dowsett J in State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186 at [2]1005 [2010] FCAFC 261006 ibid, at [65]1007 Ibid [64]-[66]

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[which] is capable of showing that there were rules about the use of the sea even though the proof of

the songs themselves is not proof of the law or custom.”1008

5. Genealogical evidenceThe Courts have rejected a narrow or technical approach to genealogical evidence regarding descent

from the sovereignty era occupants of a claim area.1009 Genealogical issues were central in the

rejection of an unreasonable and unrealistic approach by Kirby P in Mason, who approached such

evidence on the basis of assessing the probability of intervening events that would break the relevant

biological links.1010

Olney J recognised in Yarmirr, “the proof of genealogical connections to ancestors living at or prior to

European settlement cannot be proved by reference to official records.”1011 His Honour held that the

“preponderance and weight” of the historical records of indigenous inhabitation both prior and

subsequent to sovereignty and the ability of the claimants to trace their genealogy for four generations

(i.e. for around 100 years prior to 1946), together with a lack of evidence to the contrary, enabled him

to infer the relevant genealogical links back to sovereignty and inhabitation of the claim area by such

people continuously ever since.1012

Lee J in Ward was satisfied to rely on “a broad spread of links with the ancestors referred to ...

among the representative claimants”1013 shown by the genealogies, and so found “that an inference

may be drawn that known ancestors were connected with the community in occupation at the time of

sovereignty and with members of the present community.”1014

Merkel J noted in Rubibi, the difficulties facing genealogical evidence “arising as a result of the

absence or generality of historical records and the extent to which reliance was necessarily placed on

hearsay in constructing them.”1015 His Honour relied on the oral and affidavit corroboration of the

genealogical evidence by the claimant witnesses, and rejected the submissions of the State that the

genealogical evidence was inherently unreliable.1016 His Honour was “satisfied that the genealogies,

corroborated by the evidence of the witnesses, demonstrate that on the balance of probabilities the

Rubibi claimant group includes ancestral descendants of the apical Yawuru ancestors.”1017

1008 ibid, at [77], Their Honours were willing to draw such inferences notwithstanding the regard had by French J (as His Honour then was) in the trial of the matter ([2005] FCA 777) to a “constellation of factors” (including the existence of distinct languages, the separate self-referents of Bardi and Jawi, and separate territories) to the contrary - [2010] FCAFC 26 at [67], with reference to Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 at [369]1009 Commonwealth v Yarmirr [1999] FCA 1668 at [360] per Merkel J1010 (1994) 34 NSWLR 572 at 5881011 [1998] FCA 771 at [21] His Honour noted that the then non-application of the rules of evidence in the Native Title Act 1993 (Cth) and exceptions to the Hearsay Rule in the Evidence Act 1995 (Cth) enabled regard to be had to evidence from witnesses of relationships and traditional practices passed down through oral history and to ethnographic and other archival observations.1012 Ibid, at [88]1013 (1998) 159 ALR 483 at 5331014 Ibid, at 40-41, with regard to uncontradicted genealogies prepared by anthropologists based on ethnographic material and claim group statements, and consistent oral evidence. Upheld by the Full Federal Court in The State of Western Australia v Ward [2000] FCA 191 at [232] and [235]1015 [2001] FCA 607 at [157]1016 Ibid, at [158]1017 Ibid, at [159]

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In Griffiths, Weinberg overcame the evidentiary difficulties associated with “cases where the need to

go back thirty or forty years beyond the earliest extant genealogy would render the process too

speculative to permit an inference of continuity or connection to be drawn,” by refusing to turn “a blind

eye to ... historical realities.” These included knowledge of indigenous occupation dating back to the

earliest explorer, ethnographic similarities with other parts of Australia and documented ritual

practices from the late-nineteenth century which were similar to those recorded prior to European

settlement elsewhere.1018

In Aplin on behalf of the Waanyi Peoples v State of Queensland^9 (Waanyi), Dowsett J drew

inferences in relation to membership of a community from self-identification and recognition and

acceptance by neighbours, as well as geographical factors such as birth or residence that whilst, not

direct evidence, “may provide a basis for inferences as to affiliation.”1020 His Honour inferred such

matters as “[i]t seems unlikely that in a relatively small community, one Waanyi family would have

held views which differed substantially from those held by other Waanyi families in the area.”1021

However, a lack of evidence of ancestral links can remain a challenge for native title claimants, as

shown in Yorta Yorta. Olney J was only satisfied that two of the 18 ancestors referred to in the claim

were descended from the indigenous inhabitants of the claim area at the time of sovereignty, and

accordingly refused to consider any areas of the claim other than those occupied by those two

ancestors and declined to draw favourable inferences in the face of contrary genealogical

evidence.1022 Similarly, in Bodneythe Full Court of Finn, Sundberg and Mansfield JJ were critical of

Wilcox J’s reliance on a “statistical probability” to draw inferences of lines of descent from people

living in the Perth Metropolitan Area at sovereignty, whereby His Honour held:

we know some thousands of Aborigines lived in the Perth Metropolitan Area at date of

sovereignty. In the ordinary course, those people would now have hundreds of thousands of

living descendants. Nineteenth century families (Aboriginal and non-Aboriginal) were usually

large. ...but it seems most unlikely that the wider Noongar community contains no

descendant of any of them.™23

On appeal their Honours held that such an inference would require “proof of continuing connection to

that area” by tracking “the continuing operation and vitality of those descent rules as they related to

that area.”1024

6. Geographic boundariesThe nature of native title holdings are such that their geographic boundaries raises various evidentiary

difficulties, which in turn may need to be the subject of inference (some of which were discussed in

1018 [2006] FCA 903 at [583]1019 [2010] FCA 6251020 Ibid, at [229], [232]. [233] and [239]1021 Ibid, at [232]1022 [1998] FCA 1606 at [88]1023 [2006] FCA 1243 at [799]1024 [2008] FCAFC 63, at [189]

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Part 6 of Chapter 5). These difficulties were acknowledged by Brennan J (as His Honour then was) in

Mabo as follows:

There may be difficulties of proof of boundaries or of membership of the community or of

representatives of the community which was in exclusive possession, but those difficulties afford

no reason for denying the existence of a proprietary community title capable of recognition by the

common law.1025

As a consequence, as RD Nicholson J held in Daniels, “[t]he problems of proof dictate that

boundaries need not be proven precisely or with absolute accuracy.”1026

In Yarmirr, boundaries of the claim area were accepted notwithstanding the absence of direct

evidence, and based on “reasonable inferences” from the evidence of use. 1027 Olney J noted that

whilst the northern boundary of the claim area was “no doubt fixed quite arbitrarily,” consistency with

the evidence and an absence of contradictory evidence or challenges to the credit of witnesses,

allowed the inference to be drawn that the boundary was appropriate.1028

Similarly in Ward, Lee J referred to Brennan J’s judgment in Mabo and held that “exigencies of the

Aboriginal way of life neither required, nor facilitated, establishment of precise boundaries for

territories occupied by Aboriginal societies.”1029 This approach was supported on appeal in State of

Western Australia v Ward™30 (Ward FC) by Beaumont and on Doussa JJ, who held the fact that the

particular area in question was “well inside the determination area” and having “regard to Aboriginal

activities in the surrounding areas,” this could support a finding of connection with the relevant

area.1031

In Bodney, Finn, Sundberg and Mansfield JJ noted a propensity by the Court “to infer such connection

as was practicable with” land or waters that are inaccessible or for which there is no evidence of use

“from Aboriginal activities in the surrounding areas which were supportive of a connection to the

general area within which those apparently unused or inaccessible areas were located.”1032

Barker J has made two significant findings in relation to such matters. Weighing of all of the evidence

was the basis for His Honour’s judgment in Banjima, to resolve boundaries in “border or transitional

areas where people were multilingual and “tribal” appellations can confuse, rather than help, the

analysis.” 1033 The Court considered whether inferences could be drawn from the ethnographic and

anthropological materials, but Barker J preferred on balance the evidence of the Banjima witnesses

over these equivocal and uncompelling records.1034 His Honour thus held that the disputed area “was

an area in respect of which the evidence shows that Banjima people at the time of contact with British

1025 (1992) 175 CLR 1 at 51-521026 [2003] FCA 666 at [113], with reference to Olney J’s judgment in Yarmirr v Northern Territory of Australia (No 2) (1998) 82 FCR 533 at [97]-[98] and State of Western Australia v Ward [2000] FCA 191 per Beaumont and von Doussa JJ at [202]1027 (1998) 156 ALR 370, [97]-[98]1028 Ibid, at [98]1029 (1998) 159 ALR 483 at 5041030 [2000] FCA 1911031 Ibid, at [262]1032 [2008] FCAFC 63 at [175]1033 [2013] FCA 868 at [295] and [296]1034 Ibid, at [296]

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settlers, and by inference at sovereignty, had native title rights and interests pursuant to their laws

and customs.”1035

In Badimia, Barker J took a harder line on inference as to geographic boundaries. His Honour noted

the inconsistencies in the evidence presented by individual witnesses suggesting that each had

sourced their knowledge from differing sources, which suggested “no real consensus about the metes

and bound of traditional Badimia country” and an absence of an “accepted body of Badimia

knowledge about boundaries.”1036 Such problems were compounded by only parts of the claim area

matching the ethnographic data presented.1037 His Honour concluded he did not consider that the

direct evidence presented by the claimant witnesses was sufficient “to infer, on the balance of

probabilities, that the Badimia boundaries at sovereignty included the whole of the claim area,”1038 and

that “it would be speculating if I were to find that the whole of the claim area is within traditional

Badimia country.”1039 1040

The Supreme Court of Canada has taken similar approach to defining boundaries. McEachern CJ in

Delgamuukw v British Columbia™*0 was prepared to make "’substantial and appropriate discounts for

the difficult task the plaintiffs have undertaken and due allowances for human frailty, faulty memories,

imperfect communication, erroneous assumption, incorrect inferences and other error inducing

processes” in this regard, noting also that the Court must “do the best [it] can” where “evidence and

inferences do not furnish a completely satisfactory answer.”1041 Similar decisions have been made in

US jurisdictions.1042

7. Expert evidenceThe extent and conduct of inferential reasoning by expert witnesses has been the subject of

significant native title case law. Whilst inference and extrapolation by experts has been recognised as

a fundamental component of the relevant methods of experts,1043 the ultimate inferences are to be

drawn by the Court. In the course of the trial in Ward, Lee J reinforced the role of the expert witness

vis-a-vis the role of the judge, in that the opinion of the expert witness is “no more than the

highlighting of an available inference that may [be] drawn from ... historical material that has been

gathered. Whether such an inference is indeed able to [be] drawn is a matter for me after I determine

the facts.”1044

These respective roles give rise to the need to ensure that expert evidence sufficiently allows the

Court to critique the manner in which the expert arrived at his or her conclusion, particularly having

regard to the validity of the premises from which the expert infers. This is because, as Sundberg J

1035 Ibid, at [316]1036 [2015] FCA 204 at [202]1037 Ibid1038 Ibid, at [199], [205] and [206]1039 Ibid, at [207]1040 (1991) 79 DLR (4th) 1851041 Ibid, at 507, 516, 523, 5201042 Snake or Piute Indians v United States 112 F Supp 543, 522 (1953) (Ct Cl USA); Upper Chehalis Tribe v United States 155 FSupp 226, 228-229(1957)1043 Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [565], per Jagot J1044 Quoted in Choo in Kirkby and Coleborne, op cit, at 272

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held in Neowarra, “the weight to be accorded an opinion or conclusion that is founded on a fact that is

not established by admissible evidence may thereby be reduced.”1045 Similarly in Risk, Mansfield J

emphasised the need for transparency in the process of the expert’s reasoning, such that factual

premises are readily identified in expert evidence to facilitate the ability of the legal representatives

(and by extension, the judge) to address them.1046 1047 1048 This is because:

‘facts’ themselves have varying degrees of primacy or subjectiveness. ...In the realm of

expert evidence, the primary data upon which an opinion is based may comprise a mixture of

primary and more complex facts. The opinion may then be further based upon an

interpretation ... [and] an exercise of judgment, sometimes fine judgment, by the person

concerned.™47

For these reasons, like the general law discussed in Chapter 7, the application of the Basis Rule and

associated issues have been considered in native title determinations. In this regard, Sundberg J held

in Neowarra, that:

While the legislation does not incorporate a "basis rule, ” an expert should nevertheless

differentiate between the facts on which the opinion is based and the opinion in question, so

that it is possible for the court to determine whether the opinion is wholly or substantially

based on the expert's specialised knowledge which in turn is based on training, study or

experience.™48

Experts have been criticised in the native title process for their failure to follow sound inferential

techniques and for a lack of transparency of how this was carried out. Lindgren J in Wongatha No 7

was critical of an expert report that contained “undifferentiated combinations of speculation, summary

description of facts, opinion (including opinion beyond the witness’ field of specialised knowledge),

hearsay, unsourced assertion and sweeping generalisation.”1049 In Jango, Sackville J similarly

criticised an expert anthropological report for its failure to clearly expose the reasoning leading to the

opinions arrived at by the authors” and to “distinguish between the facts upon which opinions are

presumably based and the opinions themselves,” such that the “basis on which the authors have

reached particular conclusions is often either unstated or unclear.”1050 His Honour formed the view

that one anthropological expert “had not been limited to that of a wholly objective expert observer and

commentator,”1051 whose evidence was therefore worthy only of varying levels of acceptance.1052

Similarly in Waanyi,™53 Dowsett J held that the views of an anthropological expert witness were “little

more than a theory.”1054

1045 [2003] FCA 1399 at [39]1046 [2006] FCA 404 at [468] - [470]1047 Ibid. Similarly, see Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [433] per Lindgren J1048 [2003] FCA 1399 at [23], consistent with RD Nicholson J in Daniels v State of Western Australia [2000] FCA 858 at [30] and Sackville J in Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 at [54] and [55]1049 [2003] FCA 893 at [28]1050 [2004] FCA 1004 at [11]1051 Ibid, at [326]1052 Ibid, at [338]1053 [2010] FCA 6251054 Ibid, at [122]

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Experts have also been criticised for alleged bias. In Gale, Madgwick J described the relevant expert

as having “not always displayed the rigours of inference and examination to be expected” and having

“unjustifiably turned speculations into inference as to possible versions of events that have attractions

for members of the claimant group.”1055 Similarly in Risk, historian Dr Wells’ methodology sought to

address the deficiencies of the historical record through reading it “against the grain.”1056 Whilst the

Court found Dr Wells was not biased, she “was not a dispassionate witness” as she “clearly firmly

believed in the reliability of the views she had expressed, and was anxious to persuade as to their

advocacy.”1057 Mansfield J held that the methodology adopted by Dr Wells was, in a number of

instances, not persuasive and was to be regarded with “some circumspection,”1058 because “she had

on occasions inferred a background or context to certain historical materials to understand them as

consistent with her view.”1059

However, there is a fine line involved in assessments of bias, as indicated in Sampi v State of

Western Australia™60 where French J acknowledged that expert reports containing “argumentative or

taxonomical conclusions or inferences relevant to the claimed determination of native title” are

appropriate (but are then for the Court to evaluate). This is in contrast to the unacceptable situation

where expert opinion evidence becomes advocacy for a particular outcome.1061

More recently, and consistent with matters the subject of Chapter 4, Mortimer J held in Narrier that the

expert anthropologist for the State’s approach was “too document-based, and too literal,” and treated

“sources he worked with as having some absolute authority, without in my opinion making appropriate

allowance for the time and context in which they were produced or recognising that they are only part

of the picture.”1062 Her Honour further found that the expert was “too ready to draw inferences from

what was not in the material, which again stemmed, in my opinion, from his tendency to see these

sources as absolutely authoritative.”1063

8. Inferences of failure to maintain connectionThe case law gives a useful insight into the importance of positive evidence to support inferential

reasoning, in contrast to any suggestion that in light of the evidentiary difficulties faced by applicants,

absence of evidence to the contrary might be sufficient. What is apparent, including from recent

determinations, is the imperative that positive evidence lends itself to the inference of continuity of a

normative society if a native title claim is to succeed.

For example, Madgwick J in Gale noted the complete lack of evidence in relation to the content of

native title rights and interests prior to sovereignty,1064 and of any traditional law and customs

1055 [2004] FCA 374 at [132], See also Lindgren J’s judgment in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [413] - [430]1056 [2006] FCA 404 at [121] to [123]1057 Ibid, at [132]1058 Ibid, at [133], [137] and [138]1059 Ibid, at [133]1060 [2005] FCA 7771061 Ibid, at [792] and [793]1062 [2016] FCA 1519 at [289]1063 Ibid1064 [2004] FCA 374 at [120]

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foundations for regrouping by the original Aboriginal inhabitants of the greater Sydney area in

response to periodic necessities.1065 On the basis of a lacunae of evidence, His Honour held that

knowledge of pre-sovereignty norms of relations to and in connection with land inherent in traditional

laws and customs has been irretrievably lost.1066 His Honour also held “the inference of immense

change causative of virtually complete loss of a language confirms every other indicator that the

changes since sovereignty have amounted to a complete rupture with traditional ways, not their live

maintenance through adaptation.”1067 1068 Thus Madgwick J held:

the inference does not appear warranted that the rise of any felt primary identity as Darug

people in the 19th and 20th centuries among the claimants and their forebears is of a kind

with traditional pre-sovereignty regroupings. ...the scale and intensity of the post-sovereignty

re-arrangements ... [are] of a kind quite different from what occurred before sovereignty, so

as to indicate ... a break with anything previously known.''068

Madgwick J expressly reached this conclusion having regard to the “radically different context” of

ouster of Aboriginal people from the great bulk of the lands, inter-marriage with non-Aboriginal people,

and cessation or fundamental change to traditional economic, political, social and spiritual ways of

living.1069

Jagot J in Wyman held that whilst the anthropological evidence supports the inference that the

Karingbal People1070 had traditional laws and customs that involved differential rights and

responsibilities for different areas based on familial and environmental clusters, this inference was

ultimately to the detriment of those claimants given that aspect of traditional laws and customs had

disappeared.1071 1072 Her Honour held that the knowledge of the Arcadia Valley held by the Karingbal was

not:

capable of supporting an inference of traditional laws and customs under which there are

rights and interests in relation to the land when the weight of the evidence indicates, at best,

the continuation of so few fragments of traditional laws and customs in such attenuated or

radically revised forms.m2

Her Honour did so on the basis the evidence1073 “does not support the inference that the observance

and acknowledgment of the pre-sovereignty laws and customs of the Karingbal people has continued

1065 Ibid, at [122] and [123]1066 Ibid, at [126]1067 Ibid, at [111]1068 Ibid, at [124]1069 Ibid. Contrast State of Western Australia v Ward [2000] FCA 191 at [241] where Beaumont and von Doussa JJ held that an inference that Aboriginal presence became impractical in an area because of concentrated settler activity on its own does not give rise to a finding that “surviving members of the indigenous population have not substantially maintained their connection with the land.”1070 The reference to the Karingbal People appears in Her Honour’s judgment as a reference to the “BRP” or “Brown River People.” However, given Her Honour’s findings that the true Karingbal People were only the descendants of the apical ancestors the subject of the BRP claim, these people are appropriately referred to (as Her Honour subsequently did in her judgment) as the Karingbal People.1071 [2013] FCA 1229 at [555]1072 Ibid, at [619], Contrast this and Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 15 at [153] with the Full Court’s treatment of “subsidiary matters” in Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26 at [77]1073 Statements of witnesses regarding boundaries and language, expert reports describing the impact of European expansion, and reports of anthropologists and archaeologists which sort to establish the boundaries of Karingbal area.

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substantially uninterrupted since sovereignty.”1074 Her Honour similarly found that the evidence1075

supported the inference that the Bidjara claimants had lost their pre-sovereignty traditional laws and

customs, given there was “no evidence of any continued acknowledgment or observance of these

aspects of the law and custom ... given ... at the preservation of evidence hearing in 2001.”1076

The importance of the need to acknowledge and observe, not merely know about, traditional laws and

customs to support an inference of a normative society was emphasised by Jessup J in Sandy on

behalf of the Yugara People v State of Queensland (No 3J.1077 His Honour held that members of the

Turrbal claim group being told about traditional customs, combining visits to the claim area to attend

places of traditional interest as well as other reasons, and witnessing and participating in ceremonies

and rituals “is not enough” to require the court to infer the existence of a normative society.1078 His

Honour also held that “the only indications of an aboriginal presence in the Brisbane area in the late

nineteenth century were isolated ones from which no inference of the existence, much less of the

vitality, of a society in ... could safely be drawn.”1079 His Honour noted that the evidence from both

applicant groups of continuity of acknowledgement of laws and customs was “unsystematic and

fragmentary,”1080 and certain knowledge did not “bespeak the existence of a normative system of laws

and customs.”1081 1082 In relation to the challenges faced by the claimants, Jessup J held that:

Even allowing for a degree of generosity in recognition of the difficulties associated with

proving events which occurred long before the lifetime of any witness, and in relation to which

even anthropologists and historians need to proceed by way of inference, the factual basis of

the Turrbal case as outlined above does not, in important respects, rise above surmise. ...

[and certain claims are] no more than a matter of conjecture.'1062

The Courts ability to draw the necessary inferences was also diminished by a dearth of relevant

evidence over “the better part of a century,”1083 and by the fact that “at the point of bringing forward

concrete evidence from which, even arguably, continuity might be inferred, everything occurred” outside

the claim area.1084

Similarly, in Badimia Barker J noted the difficulty confronting the applicants was that “the data, both

historical and more contemporary, of the ethnographers, and the claimant evidence is limited in the

case of the former, and largely speculative, in the case of the latter.”1085 His Honour found that there

was “little evidence in effect to piece together the evolution of a sovereignty rule through to the current

rule, even by inference. It is difficult to conclude, on the facts presented in this case, that the

1074 Ibid, at [621]1075 Preserved evidence regarding boundaries and culture, witness statements regarding boundaries, traditions, customs and laws and stories, expert anthropological and archaeological reports, and in relation to language and the impact of Europeanexpansion.1076 Ibid, at [628]1077 [2015] FCA 15. Upheld on appeal in Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 1081078 Ibid, at [129]1079 Ibid, at [80]1080 Ibid, at [81]1081 Ibid, at [152] and [153], in relation to songs and “stories, beliefs, fears, taboos, habits and activities."1082 Ibid, at [84]1083 Ibid1084 Ibid, at [154]1085 [2015] FCA 204 at [423]

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contemporary rule as to who can speak for country is an acceptable adaptation of the inferred

sovereignty rule.”1086 Thus, “[b]y inference, the estate/local group organisation, likely to have existed at

sovereignty, collapsed.”1087 Barker J held:

Ethnographic evidence of such a functioning group, by law and custom, is, on the whole,

missing, and that of the claimants alone does not adequately or sufficiently supply it. ...

Without primary evidence it is not open to the Court to infer a community or society of

Badimia that has existed through the generations and which has maintained a connection

with the claim area by traditional Badimia laws and customs.1088

Instead, His Honour inferred that at some point... probably in the course of the 20th century, a “new”

society of people who identified, and identify, as Badimia for explicable historical reasons became

responsible for maintaining a connection with what was considered to be Badimia country.1089

9. Challenges for overlapping claimsOverlapping and competing native title claims can pose particular challenges to the Court’s ability to

draw inferences favourable to the existence of native title. An example of where the Courts have been

able to overcome such challenges is Ngarla, in which Bennett J held that the Ngarla People held

native title rights in an area of overlapping claims.1090 Her Honour held that the competing Warrarn

claim to the overlap area was not made out,1091 including because, notwithstanding a Court may draw

inferences from observable patterns of behaviour, the right or interest to behave in the manner

observed must have normative content. Her Honour took into account that the Warrarn’s residence on

a pastoral lease within the overlap area “is recent and much of that behaviour commenced with their

purchase of the pastoral lease.”1092 Further, Her Honour held:

The Warrarn need to demonstrate that their practices and rights are part of the normative

system of traditional law and customs. The observable behaviour1093... does not alone

demonstrate the rights and interests that are claimed by the Warrarn. Indeed, many of the

observable behaviours are highly specific and would not permit a broader inference to be

drawn in respect of the Warrarn and Ngarla generally.1094

Barker J in Banjima approached the resolution of competing interests in “border or transitional areas

where people were multilingual and “tribal” appellations can confuse, rather than help, the

analysis,”1095 through weighing the evidence as a whole. The Court considered whether inferences

1086 Ibid, at [425]1087 Ibid, at [430]1088 Ibid, at [482]1089 Ibid, at [432]1090 [2012] FCA 1268 at [936] to [938]1091 Ibid, at [941]1092 Ibid, at [283]1093 That young people were put through the Law, the right to hunt and get boomerangs, cutting trees in accordance with traditional law and custom, fashioning sacred objects for use in ceremonies and obtaining bush tucker from the country.1094 Ibid, at [314], Merkel J’s judgment in Rubibi Community v State of Western Australia (No 6) [2005] FCA 1025 at [331]; [2006] FCA 82 at [94] is another example of where the Court has been able to overcome such challenges and make a favourable finding in relation to the applicants.1095 [2013] FCA 868 at [295] and [296]

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could be drawn from the ethnographic and anthropological materials, but Barker J preferred on

balance the evidence of the Banjima witnesses over these equivocal and uncompelling records.1096

His Honour thus held that the disputed area “was an area in respect of which the evidence shows that

Banjima people at the time of contact with British settlers, and by inference at sovereignty, had native

title rights and interests pursuant to their laws and customs.”1097

However, in Lake Torrens, Mansfield J held that whilst “it is not uncommonly the case that what is

clearly established by evidence may support an inference, either by physical or by temporal proximity,

to fill the gap in evidence because there was, realistically, no meaningful way of securing direct

evidence,”1098 such inferences were unavailable in that case. This was due to the multitude of

interests (real and asserted) in and adjacent to the claim area, which created two obstacles to such

an inference. Firstly, on the assumption that, subject to evidence of occupation at first contact, it is

more probable than not that a particular group of Aboriginal people occupied an area of country at

sovereignty:

There may also be areas where the proximity of a particular native title holding group enables

it to be inferred that they are the holders of native title rights and interests in adjacent country,

where there is no other competing claimant group ... particularly so where there is a broader

cultural bloc of traditional people holding the native title rights and interests in that adjacent

country.1099

But here His Honour held that “such inferences are not routinely available” due to the claim area

being surrounded entirely by three distinct determinations of native title, and “no ready inference to be

drawn” from this in favour of any one of the three competing applicants.1100 Secondly, Mansfield J

held that “much of the evidence led by each of the Applicants was inevitably inconsistent with, rather

than complementary to, the claims of competing Applicants.” His Honour cited the example of one

applicants’ assertion that a particular area is a men’s only place where women are forbidden, which

was directly contradicted by the other two applicants. On this basis, His Honour held that “[i]t is an

area where the competing claims cannot co-exist.”1101

10. Disregarding prior extinguishmentSections 47A and 47B of the Native Title Act allow the Court to disregard prior extinguishment of

native title for reserves and vacant Crown land covered by applications respectively, provided the

relevant area is occupied by one or more members of the native title claim group when the application

is made. In Alyawarr, Mansfield J inferred that the claimants had established the requisite level of

occupation given they “resided nearby, and in the traditional way hunted and traversed the land

1096 Ibid, at [296]1097 Ibid, at [316]1098 [2016] FCA 899 at [706]1099 Ibid, at [707]1100 Ibid, at [709]1101 Ibid, at [710]. Whilst not explicit in the way it was in this case, it seems reasonable to assume that the capacity for favourable inferences in other unsuccessful native title determinations may have been strained by the competing applications involved, such as in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 and Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15.

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around Alepeyewenh.”1102 1103 1104 On appeal in Northern Territory of Australia v Alyawarr, Kaytetye,

Warumungu, Wakaya Native Title Claim Groups03 Wilcox, French and Weinberg JJ rejected the

Northern Territory submission that:

the Court should act only on direct evidence of the occupation required by the section and not

upon inference ... [because] s 47B has a significant effect. ... Courts are frequently called

upon to reach conclusions about matters of great significance upon inferences drawn from

evidence. There is nothing about s 47B that requires a more restrictive approach to the

discharge of the Court’s function.'1'10*

In Rubibi Community v State of Western Australia (No 7j,1105 Merkel J held that while direct evidence

to support a finding of claim group member occupation at the relevant dates was preferable, the

matter could still be resolved by inference that:

the same, or a substantially similar, usage by claim group members occurred at the relevant

dates. The main reason for that conclusion is that the usage is traditional and of a kind that is

likely to have been ongoing over a long period. Accordingly, I am prepared to infer that, at the

relevant dates ...it is more probable than not that one or more claim group members visited

and used these bush areas.1106

More recently, in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western

Australia,1'07 Rares J acknowledged that there is no precise basis to make such a determination, but

the evidence of the claimants’ “enthusiasm to range over Yindjibarndi country when they were on it

provides a sound basis for the inference, that I draw” of occupation by the claim group members at

the relevant time.1108

11. Adverse inferences and tactical burdenAdverse inferences and matters of tactical burden arise in various respects in native title matters,

including in relation to information that might be assumed to be within the possession of the Crown by

virtue of its various roles and responsibilities carried out in relation to a claim area at the relevant time,

and as the keeper of the public archive, and whether cultural issues should be a consideration in

relation to any failure by an individual member of the claim group to give evidence. In relation to the

former, Lee J held in Ward:

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

1102 [2004] FCA 472 at [313]1103 [2005] FCAFC 1351104 Ibid, at [191]1105 [2006] FCA 4591106 Ibid, at [121]1107 [2017] FCA 8031108 Ibid, at [301], with reference to Luxton v Vines (1952) 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ; and Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR at 276 at [88]

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which Aboriginal applicants are permitted to present their case through use of oral histories

and by reference to received knowledge.1™9

In relation to the latter, His Honour rejected submissions by the State that the failure to call a relevant

member of the claim group permitted the inferences that there was no connection to a particular

community at sovereignty to be drawn with more confidence, on the grounds that “the relevant

evidence was before the Court and there was nothing to suggest that there was material particularly

within the knowledge of that person.1109 1110

Relevant to a tactical burden, Carr J held in Ward v State of Western Australia1111 that:

where facts are peculiarly within the knowledge of party to an issue, its failure to produce

evidence as to those facts may lead to an unfavourable inference being drawn when the

administrative tribunal applies its commonsense approach to evidence. Again, if this happens,

it will not be because of the application of any evidential onus of proof, but by the application

of the commonsense approach to evidence 1112

In relation to inferences against claimant group members, in De Rose O’Loughlin J held that in

relation to an applicant, who was referred to throughout the evidence and submissions:

Her evidence would have been of value in assessing her generation's views on native title. ...

Bearing in mind that she was presumably regarded as being a person of sufficient importance

to be included as one of the original twelve applicants, it was puzzling that she did not give

evidence and that no evidence was led to explain her absence. I can only infer that if she had

given evidence, it would not have assisted the claimants' cause.1113

His Honour also stated it was “very disappointing and somewhat significant not to have received

evidence from more young people. One is left wondering whether the members of the younger

generations have the same interest in native title entitlements as their elders.”1114

Similarly, in Wongatha No 9 Lindgren J responded to submissions that where only some of the

witnesses from a particular group testified on a particular matter relevant to the acknowledgement and

observance of laws and customs, His Honour should draw an inference that evidence from such

persons would not have assisted with respect to that matter.1115 His Honour held it was appropriate to

draw such an inference,1116 and that “none of the biological descendants could have given evidence

which would have significantly assisted in respect of the acknowledgment and observance by the

Maduwongga Claim group of traditional laws and customs.”1117

1109 (1998) 159 ALR 483 at 5041110 Ibid, at 421111 (1996) 69 FCR 2081112 Ibid, at 217. This approach was similarly adopted in Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 at [23] and in Ashwin and Others on behalf of the Wutha People v West Coast Geoscience Pty Ltd and Another [2014] NNTTA 88 at [14] - [15]1113 [2002] FCA 1342 at [11], with reference to Jones v Dunkel (1959) 101 CLR 2981114 Ibid, at [15]1115 [2007] FCA 31 at [959]1116 Ibid, at [960]1117 Ibid, at [3564], with reference to Jones v Dunkel ^959) 101 CLR 298 at 308

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However, in Narrier, Mortimer J did not readily draw an adverse inference in relation to the departure

of a witness. Her Honour noted the cultural difficulties applicable to the presentation of evidence, and

considered “he simply felt he was unable to stay any longer in circumstances where he was clearly

concerned that what was occurring was not in accordance with his traditional laws and customs.”1118

12. Conclusion to Chapter 8This Chapter provided an analysis of the approaches taken by relevant Courts to inferential reasoning

regarding the connection requirements in native title determinations. This case law highlights

concerns amongst the judiciary similar to those raised elsewhere in Chapters 2 and 4, in that

inferences are required to fill gaps in the evidentiary record, should be drawn having regard to the

deficiencies and perspectives inherent in the archive, and be drawn with a consciousness of judges’

own assumptions and prejudices.

The analysis in this Chapter again supports the finding in relation to Research Question 2 that there

are already developed principles akin to informal guidelines for inferential reasoning in native title

determinations. There are numerous significant cases, including obviously Gumana, Gudjala and

Wongatha # 9 that make significant contributions to clear principles for application to inferential

reasoning generally, with Gumana the touchstone for many subsequent cases. There are also

numerous cases that provide clear and consistent principles in relation to specific issues relevant to a

native title determination. The combination of the analysis in Chapter 7 and in this Chapter therefore

underpin the finding in the affirmative regarding Research Question 2 (and the contents of the

Inference Guidelines), subject to the qualifications raised in the conclusions to Chapters 5 and 6.

This Chapter identified that similar to the matters analysed in Chapters 6 and 7, inferential reasoning

must not be limited by unrealistic or unreasonable principles, and should be based in common sense

and human logic, where there is a proper foundation for them in the facts proved in the proceedings,

and with regard to the evidence considered as a whole. Whilst evidentiary challenges may justify

greater inferential reasoning, an over-riding consideration is that inferences may only be drawn where

they are supported by evidence of matters prescribed by the Native Title Act and the applicable case

law interpretations of it.

The consequence of this is that the Court must always be satisfied there is evidence (beyond the

unsystematic and fragmentary), which supports inferences required to confirm the continuance of the

existence of a normative society in relation to the claim area since sovereignty. Evidence unrelated to

this will be irrelevant to found such an inference, unless it is evidence of subsidiary matters which

assist in drawing inferences about such matters. This finding crucially underpins the answer to

Research Question 3, that balance can be achieved in the Inference Guidelines to achieve the

remedial objects of the Native Title Act and account for the mishchiefs identified by the Courts and

1118 [2016] FCA 1519 at [223]. See also Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 at [122] for an example of the Court declining to draw an adverse inference because of the lack of testimony from an expert witness where it was likely his evidence would have been similar to that of another expert who was called as a witness.

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elselewhere, without impermissibly enlarging the scope of native title. This is achievable by the Courts

applying the dispensations and considerations identified elsewhere in this thesis and provided for in

the Inference Guidelines, but still remaining true to the requirements of the Native Title Act and the

precedents for how it has been interpreted to apply.

Caution should be exercised not to draw inferences based on an historical snapshot, but rather

should be based on evidence which spans a sufficiently long period to assess adaptation and change.

In addition, the irreversible consequences of a negative determination is a relevant factor in

considering the appropriate scale of probabilities applicable to the drawing of an inference of loss of

connection.

Clear principles have been laid down and followed by the Courts regarding the drawing of inferences

of a tradition or custom existing since settlement, including the period between sovereignty and the

point in time when the evidentiary record (archival or relayed by oral tradition) is sufficiently reliable.

These principles involve both an absence of evidence to the contrary (suggestions of which must be

scrutinised according to normal evidentiary principles), and positive evidence sufficient to constitute a

foundation for the drawing of the inference (consistent with the requirements for proof of a normative

society and other matters interpreted by the Courts as required by the statutory definition of native

title). These principles also require evidence based on general reputation, which will be strongly

grounded where that evidence is from senior elders regarding instructions received from

grandparents, such that a significant proportion of the period of time in which maintenance of

connection must be proved is covered.

Such evidence may be based on proof of custom, retrospective continuance or attribution. This will

depend on the circumstances of what has been observed at the relevant time, and any evidence of

intervening events (such as European contact) which may have disrupted the exercise of the custom.

Such inferences may be more readily drawn over shorter periods.

Methods for inferring maintained observance of traditional laws and customs between sovereignty

and contact with Europeans sufficient for the development of the archive or the relayed experiences

of living witnesses include reference to historical records, where these are sufficiently continuous, or

an examination of the similarity of a society and its laws and customs at multiple points in time.

Other bases for such inferential conclusions include the intricacy and constitutional status of systems

of laws and customs being such that they are unlikely to be of recent invention, and contemporary

evidence of contemporary normative rules as the basis for an inference of the existence of the

normative rule at sovereignty.

The case law also provides principles for determining matters relevant to proof of biological descent

and geographic boundaries of determination areas, having regard to the complexities involved in both

respects. Judgments in native title matters have also adopted similar approaches to expert evidence

to those adopted in general litigation, so that the Courts can appropriately critique the factual

foundations and interpretive methodology of the witness as the ultimate drawer of inferences.

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The Courts have also established considerations relevant to drawing inferences in favour of and

against a positive determination in areas of overlapping and competing claims. In relation to proof of

occupation of an area at the relevant time to support a finding to disregard prior extinguishment under

ss 47A or 47B of the Native Title Act, the Courts have been willing to adopt factors relevant to their

inferential assessment which provides significant latitude to the native title claimants.

When considering adverse inferences and the tactical burden of the Crown, regard should be had to

whether information might reasonably be assumed to be within the possession of the Crown by virtue

of its various roles and responsibilities carried out in relation to a claim area over the relevant time,

and as the keeper of public archives. In relation to a Court’s decision whether to draw adverse

inferences against claim group members who fail to testify or provide limited testimony, consideration

should be given to whether any cultural issues (as considered in Chapter 5) may explain such

conduct, rather than the conduct being because such testimony would not be helpful to the claimants’

case.

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Chapter 9 - Conclusion

1. Summary of ChaptersThe aim of this thesis is the development of appropriate Inference Guidelines in line with the

recommendation contained in the ALRC Connection Report. The proposed Inference Guidelines are

attached at the appendix to this thesis. The style adopted for the Inference Guidelines follows that

adopted in the various Bench Books considered in this thesis. The preparation of the Inference

Guidelines involved a synthesis of:

• The consistent principles held to be applicable in the case law regarding inferential reasoning,

both native title-specific and general.

• Literary critiques of the statutory definition of native title and the requirements of proof

emerging from it.

• Concepts which are the subject of relevant literature and existing judicial guidelines in relation

to claimant oral evidence, expert witnesses and archival material used as evidence in native

title matters.

This synthesis is made possible by virtue of the analysis of these sources of principles and concepts,

in Chapters 1 to 8 of this thesis. Chapter 1 provided the context of the native title claims process with

regard to the key features of the Native Title Act and how the evidentiary processes operate under it,

including the Preamble and Objects provisions of the Act, the definition of native title and the proof

requirements drawn from it, the matters which a native title determination must address, the types of

witnesses and other evidence relevant to native title claim hearings, and the rules of evidence and

procedure that are relevant to native title trials.

Chapter 2 identified the key ALRC Connection Report recommendations, specifically the

recommendation for the development of Inference Guidelines and recommendations for amendments

to the statutory definition of native title, as well as previous calls for and attempts at relevant reforms,

and an analysis of the bases on which the ALRC identified there is an inference-imperative in native

title determinations. An analysis of the “judicial-historical endeavour” was the subject of Chapter 3,

together with the imperatives these drive for reform of how historically-sourced evidence is interpreted

generally, and specifically in relation to native title claims in Australia. This was with reference to

common themes identified throughout the international and Australian literature on remedial justice for

indigenous peoples, including international law drivers, reconciliation and national identity and

legitimacy motivations, pedagogical benefits, and the need for methodologies of inquiry into the past

to withstand community scrutiny and maintain public confidence.

Chapter 4 considered the challenges for the inference imperative in native title addressed through

recent historiographic and epistemological debates which relate, directly or indirectly, to the proof of

native title, including the “History Wars.” It analysed the need, identified in the literature, for the Courts

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to apply inferential reasoning in light of the proof requirements of the statutory definition of native title,

and the vagaries of archival material and expert evidence. In relation to archival records, this includes

the need for context and genre considerations. In relation to social science and humanities experts,

this includes a lack of coherence of function and method to that of the Courts, potential deficiencies in

accuracy and objectivity, and general unease amongst the adversarial system.

Specific issues relevant to the oral evidence of Aboriginal and Torres Strait Islander witnesses were

analysed in Chapter 5, with a view to identifying key issues relevant to the reception of multiple

narratives in the inferential reasoning process in native title trials. These include linguistic and cultural

factors that impact on claimant oral evidence, including differences in language and non-verbal

communication; lack of eye contact and prolonged silences; limits on rights and abilities to speak

amongst individuals; suggestibility, gratuitous concurrence and scaffolding; different conceptions of

distance, direction and time; speech and hearing impairments; and potential weaknesses relating to

memory.

Chapter 6 provided an analysis of general evidentiary theories relevant to inferential reasoning by the

Courts. It considered the steps involved in a simplified version of Wigmorian inferential reasoning,

explanatory approaches to inferential reasoning, and cross-cultural considerations. It also considered

specific theoretical issues such as the role for generalisations, “common sense” and background

knowledge, as well as equal allocation of risk of error, and the comparative costs of being wrong and

the rewards of being right in inferential reasoning.

Chapter 7 analysed the how general case and statute laws govern the drawing of inferences,

particularly in civil trials. This Chapter considered the basic principles laid down by the Courts for

inference drawing, as well as standards of proof applicable for a valid inferences; matters on a

continuum which fall short of inferential standards; principles for drawing inferences of proof of

custom; principles applicable to adverse inferences and inferences drawn on the basis of a tactical

burden; inferences drawn from expert evidence; and statutory guidance for inference drawing in

uniform and non-uniform evidence legislation jurisdictions.

Finally, Chapter 8 provided an analysis of the approaches taken by relevant Courts to inferential

reasoning regarding the connection requirements in native title determinations. It considered how the

Courts have acknowledged the need for inference in such matters and the foundations for drawing

these, and key principles relevant to drawing inferences of ongoing observance of traditional laws and

customs and the existence of a normative society between sovereignty and the point in time that

material bases for evidence came into existence. It also considered the special considerations

relevant to genealogical, geographic and expert evidence and for overlapping claims, and for the

purposes of disregarding prior extinguishment under the Native Title Act, as well as adverse

inferences and the tactical burden in a native title context.

Each Chapter incrementally identified relevant issues to feed into the Inference Guidelines. As is

apparent from the conclusions to each Chapter, significant commonality of issues amongst Chapters

emerged as the analysis progressed, which greatly assisted in the synthesis of consistent and

transparent inputs into the Inference Guidelines.

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2. Limitations and recommendations for future researchThere are a number of limitations on the research involved in the preparation of this thesis. The

research did not delve into the inferential reasoning processes adopted by experts themselves,

whether generally in the social sciences and the humanities, and specifically in the preparation of

reports and giving of evidence in native title hearings. It is limited to identifying the role of inference in

expert assessments and analysing the implications for the Courts’ approaches to that.

As identified in Chapter 4, the research similarly does not embark on any detailed analysis of the

theoretical aspects of the historiography and epistemologies involved in the expert evidence

presented in native title determinations. In relation to cultural and linguistic issues, Chapter 5 compiles

conspicuous examples of linguistic and cultural challenges for Aboriginal and Torres Strait Islander

witnesses with regard to the existing literature, particularly the Bench Books. It does not extend to

testing these theories through interviews with actual claimant witnesses. These matters could be

expanded upon by further research through various disciplines to analyse geographic, contextual,

gender and generational variations.

Other future research could be directed at more comparative assessments, such as in relation to the

implications for Inference Guidelines of the differences in content of Aboriginal title law in Canada, or

of the specific procedural approaches of the Waitangi Tribunal in New Zealand. In relation to issues of

content in Australian native title, future research could also be directed at analysing approaches to

inferential reasoning in relation to native title compensation claims, particularly in relation to intuitive

approaches to assessing heads of damages such as solatium. Beyond the pure inference aspects of

this thesis, future research could also consider the potential effects of recommendations 5-2 and 5-3

in resolving various matters raised in the historiographic and epistemological debates, such as

whether these recommendations are necessary to resolve debates regarding the appropriateness of

the methodologies adopted by Black CJ in Yorta Yorta FC and Lee J in Ward (in contrast to Olney J in

Yorta Yorta) for assessing continuity of connection.

3. FindingsIn addition to the development of the Inference Guidelines, this thesis is directed at answering three

research questions. These questions, and the answers concluded based on the analyses of the

various matters involved, are as follows:

Research Question 1: What issues are raised in the literature on remedial justice for indigenous

people, recent Australian historiographic and epistemological debates, and existing literature and

tools used by the Courts in relation to special considerations regarding oral evidence of Aboriginal

and Torres Strait Islander peoples, which give rise to the inference imperative in native title?

Answer:

The issues raised in the literature in relation to remedial justice for indigenous people, which are

relevant to the need for clear guidelines around inferential reasoning drawing upon historically-

sourced evidence, include:

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• International law obligations regarding the rights of all persons to know and transmit their

histories and oral traditions and to participate in a process for the recognition of traditional

interests in land.

• National aspirations to achieve reconciliation given the role played by a transparent and fair

historical record in such matters.

• The value pluralist and democratic approaches to observing and recording the past has for

national identity and legitimacy.

• The pedagogical benefits that the judicial-historical endeavor can bring.

• The need for methodologies of inquiry into the past to withstand community scrutiny and

maintain public confidence.

The issues raised in the relevant historiographic and epistemological debates include the need for the

inferential process to be applied to archival evidence conscious of the attributes of such material that

lend themselves to suggestions of discontinuity, including characteristics that promote absence or

limited observation of Aboriginal people, misinterpretations due to lack of observer qualifications, and

language differences. This requires an approach with particular regard to:

• Broader contextual evidence that mitigates gaps in the record, including how the material fits

with the wider literature applicable locally and to the broader region, the impacts of external

factors such as Government policies and frontier cultures, and corroboration or contradiction

by different forms of evidence (including oral evidence).

• The genre of the archival evidence put before them, reading against the grain the writings of

the recorder mindful of the motivations, standpoint limitations and cultural and political

perspectives that may influence what is recorded.

In drawing inferences regarding expert evidence in native title matters, Courts should be conscious of

the relative risks of interpretative indeterminacy involved in the relevant material, the room for error in

the primary and secondary materials, any selective or partial use of material, and potential inherent

subjectivities of witnesses. This includes having regard to bias and political agendas arising from

trends in academic circles, considerations of loyalty, human frailty and mere self-interest.

Judges should also adopt an adequate level of introspection before drawing inferences, by

considering the extent to which they have sufficient skills to draw the relevant inferences, as well as a

consciousness of their own cultural and political subjectivities that may affect these. A consciousness

also of the limitations posed by the adversarial process should be brought before drawing inferences

based on potentially truncated evidence of experts.

In relation to Aboriginal and Torres Strait Islander oral evidence, the issues raised in the literature

include a need for the Court to ensure potential cultural biases do not colour inferences that may be

drawn from the demeanour of an indigenous witness, including inferences of credibility or otherwise,

having regard to the following factors:

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• The need for alertness for possible misunderstandings by witnesses due to language

differences, miscommunications due to the stressful nature of the Court, and differences of

cultural significance of non-verbal communications.

• Indigenous witnesses may avoid eye contact with Counsel or the Judge, as a matter of

respect rather than as a sign of dishonesty, and may involve extended periods of silence or

an unwillingness to answer due to other cultural differences, rather than a lack of candour.

• Witnesses may be subject to cultural restrictions on rights or abilities to speak on a certain

topic or in front of certain audiences, rather than not having the requisite knowledge or being

evasive.

• Question and answer methods in the Courtroom can pose particular confusion and stress for

indigenous witnesses, who may be accustomed to more indirect and gradual approaches to

exchange of information. During cross-examination, there is potential for suggestibility,

gratuitous concurrence and scaffolding amongst witness’ responses due to cultural

approaches to showing deference to, and building rapport with, the questioner, which should

not be misconstrued.

• Aboriginal people often have different conceptual approaches to communicating matters such

as time, direction and distance, which of themselves should not be the basis for discounting

probability and weight for want of direct correlation with Western approaches.

• A witness may suffer from medical ailments that result in impairments to hearing or speech,

and such factors should be properly factored into the overall assessment of the witness’

evidence. Potential weaknesses relating to memory (including the potential for distortion over

time and confirmation bias) should also be taken into account when drawing inferences in

favour or to the detriment of a successful finding of the existence of native title.

• The weight of oral evidence of claimants should not be subjugated to that of other forms of

evidence based on any epistemic preferences of the Courts.

Research Question 2: To what extent have the Courts already developed principles akin to informal

guidelines, through the application of consistent bases, for the drawing of inferences in relation to the

connection requirements for a native title determination, and to what extent do these provide a bright

line test or established taxonomy for such matters?

Answer:

A review of the sources referred to in the Inference Guidelines gives a quick insight into whether the

case law provides consistent and comprehensive guidelines for the drawing inferences in relation to

the proof of connection requirements in a native title determination, or whether broader references are

required.

On balance, the answer to the question whether there are already clear guidelines is in the

affirmative, although the broader literature provides a useful supplement (subject to the limitations

referred to in the answer to Research Question 3). The case law and the broader literature deal

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similarly with the weaknesses around archive material and challenges for expert evidence, as well as

judges’ own subjectivities. The literature includes discussions around issues relevant to adverse

inferences and a tactical burden, and the case law supplements these discussions very effectively,

with the legal principles as to when these will apply.

The level of consistency of principles for inferential reasoning by the Courts in native title

determinations is not to be confused with divergence of judicial opinion on the substantive law of

native title content. It is quite possible that the latter may have led to an equivalently divergent series

of questions or approaches to issues being adopted and these in turn being subjected to inferential

reasoning processes in individual native title determinations. But this does not detract from the

identified level of consistency of the actual inferential reasoning principles adopted in native title

matters, which is a crucial distinction.

As is probably to be expected, the case law extends well beyond the broader literature in specific

areas such as proof of genealogy and the borders of a claim area, considerations in relation to

overlapping claims and bases to disregard prior extinguishment. Accordingly, the reference to these

matters in the Inference Guidelines is heavily sourced in the case law.

Two areas where the case law does not extend into as significantly as the broader literature is in

relation to the oral evidence of claim group members, and the actual mental processes involved in

inferential reasoning. In relation to the first of these, there is a clear consciousness in the case law of

the need for the Court to take cultural and linguistic factors into account. However it falls to the

various Bench Books considered in this thesis for the more detailed guidance on these matters, and

accordingly this level of detail has been incorporated into the Inference Guidelines.

In relation to the mental processes of inferential reasoning, the case law is limited to

acknowledgments of key matters such as the application of common sense and general experience.

Whilst there is a serious question in relation to whether judges will extend their analytical approach to

the ordered and sequential processes proposed in the literature, a number of these have merit and

have therefore also been incorporated into the Inference Guidelines.

The answer to the second part of this question is more difficult. To the extent a bright line test or

taxonomy requires something formulaic from which claimants could presuppose their likely success or

otherwise, this is not possible to achieve. Ultimately, Courts’ discretions around the inferential

reasoning process, the acknowledged (despite all best endeavours) subjectivities inherent in that

process, and the particularities of individual claims are likely to preclude this.

However, to the extent a bright line test or taxonomy means a comprehensive and consistent set of

principles, the various matters drawn together in the Inference Guidelines achieve that, and give the

Courts a single reference of relevant principles and methods to guide their reasoning, and hopefully, a

greater level of consistency and transparency for the parties. Codifying these principles in a Bench

Book style of guideline has a number of advantages over amendments to the Native Title Act (which

is more strictly in accordance with the ALRC Connection Report recommendation 7-1). These are:

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• The ability to capture a significantly greater level of detail in relation to the general principles

relevant to inferential reasoning in native title determinations, and the specific issues that may

require inference in such matters.

• A greater degree of flexibility, so that the Inference Guidelines can be updated in line with

developments in the case law. Obviously, amendments to the Native Title Act are more

onerous to achieve, whereas a Bench Book can be overseen and revised by a suitable panel

of authors, on an as required basis.

• A holistic approach to all sources of inputs. The case law is already highly comprehensive,

but by capturing the key principles and recommendations in a Bench Book, the case law can

be supplemented with the historiographic, epistemological, cultural and linguistic

considerations drawn from the literature. The inclusion of matters which do not of themselves

have the force of law is appropriate as it is consistent with the practice of Courts taking

judicial notice of broader matters, the inherent discretions involved in inferential reasoning

and the assertion that as judges draw on their own background and common sense, they

may need to “acquire” broader perspectives in the inferential reasoning process.

Research Question 3: How can balance be achieved in Inference Guidelines to ensure the remedial

objects of the Native Title Act are achieved and the mischiefs identified by the Courts and elsewhere

are accounted for, without impermissibly enlarging the scope of what constitutes native title?

Answer:

The key to the answer to this question is the reference amongst the Australian and Canadian case

law to the over-riding consideration in inferential reasoning, being consistency of the outcomes with

the requirements of the law, and in the circumstances of this thesis, the Native Title Act and the

precedents for how it has been interpreted to apply. Whilst the challenges of a largely wholly-oral

culture and archival weaknesses have been acknowledged as grounds to justify greater inferential

reasoning, an over-riding consideration is that inferences may only be drawn where they are

supported by evidence (beyond the unsystematic and fragmentary) of continued connection through

the substantially uninterrupted acknowledgement and observance of traditional laws and customs

since sovereignty, and the continuous existence and vitality of a normative society governed by those

laws and customs since that time.

This question goes to the heart of the key difference between the case law and the historiographic

literature considered in this thesis. The former is subject to binding precedent and the inferential

reasoning is appellable. The latter has the luxury of neglecting the requirements for inferential

reasoning to be based on the existing law, and can rely on policy positions in relation to what the law

“should” be (such as, for example, whether Black CJ’s approach in Yorta Yorta FC and Lee J’s

approach in Ward now take primacy over the approach of Olney J’s approach in Yorta Yorta).

Such matters have relevance to this thesis to the extent they relate to the ability of the Courts to draw

inferences about the content of traditional laws and customs at sovereignty and the existence of a

normative society at sovereignty, based on contemporary evidence of contemporary normative rules,

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as the Court did in Ngarla. However, the emphasis the ALRC Connection Report placed on

contemporary evidence as a source of inference does not overcome the need for inferential reasoning

in native title determinations to consider the broader principles laid down in the case law, and indeed

Bennett J in Ngarla accepted that the Court’s entitlement to draw such inferences from contemporary

evidence remained squarely within the application of the broader Gumana Principles.1119

A finding of this thesis is therefore that consideration of contemporary evidence may support positive

inferences in the assessment of connection, but not in isolation. The overall inferential reasoning

process must also have regard to whether other, mandatory principles captured in the Inference

Guidelines are satisfied in tandem.

To achieve more than this is not the purpose of recommendation 7-1 of the ALRC Connection Report,

and other recommendations, such as 5-2 and 5-3, would need to be pursued. There is a clear tension

between these recommendations, which diminishes the extent to which they can be said to be true

alternatives to each other. Recommendations 5-2 and 5-3 are directed at paring back the case law

requirements for proof of native title, the result of which may be what various commentators argue is a

fairer and more just approach of contemporary evidence being sufficiently compelling to draw

favourable inferences without the need to follow other, currently existing, principles.

In contrast, recommendation 7-1 is about codifying the principles of the existing law. The ALRC

recognises this, as recommendation 7-1 is directed at providing “legislative affirmation of the practice

of the Federal Court in drawing inferences in relation to proof of native title,”1120 and not any broader

agenda in relation to the removal or diminution of evidentiary requirements to establish connection in

native title determinations. However, as the Inference Guidelines show, this can be achieved in a

manner that incorporates the key historiographic, epistemological, cultural and linguistic

considerations from the broader literature, as a guideline is consistent with the Court’s discretionary

inferential processes and its ability to take judicial notice, and provides the basis for individual judges’

acquisition of other influences beyond their own background and existing perspectives.

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1119 [2012] FCA 1268 at [724]1120 ALRC (April 2015), op cit, at 221

Appendix - Inference Guidelines

ForwardOn 30 April 2015, the Australian Law Reform Commission (ALRC) delivered its report Connection to

Country: Review of the Native Title Act 1993 (Cf/7j1121 (ALRC Connection Report).

The terms of reference for the ALRC Connection Report, issued by the then Commonwealth Attorney

General on 3 August 2013, included a request that the ALRC consider “in light of the Preamble and

Objects of the” Native Title Act 1993 (Cth) (Native Title Act) “what, if any, changes could be made to

improve the operation of Commonwealth native title laws and legal frameworks” including with

particular regard to “connection requirements relating to the recognition and scope of native title rights

and interests.”1122

Amongst its recommendations, the ALRC Report recommended guidance be included in the Native

Title Act regarding when inferences may be drawn in the proof of native title, including from

contemporary evidence.1123

The following definition of inference, which was referred to in the ALRC Connection Report, has

previously been adopted by the High Court:

An inference is a tentative or final assent to the existence of a fact which the drawer of the

inference bases on the existence of some other fact or facts. The drawing of an inference is

an exercise of the ordinary powers of human reason in the light of human experience; it is not

affected directly by any rule of law."24

The High Court has emphasised the importance of inferences, which do not have subordinated

evidentiary values, but rather “[ijnferences from actual facts that are proved are just as much part of

the evidence as those facts themselves.”1125

This ALRC Connection Report recommendation is in line with the findings of various Courts that there

is a lack of consistent and comprehensive guidelines regarding these matters. For example, in the

judgment of Gleeson CJ, and Gummow and Hayne JJ in Members of the Yorta Yorta Aboriginal

Community v State of Victoria1126 1127 (Yorta Yorta HC), their Honours stated:

It is not possible to offer any ‘single bright line test’ for deciding what inferences may be

drawn or when they may be drawn, any more than it is possible to offer such a test for

deciding what changes or adaptations are significant^27 (emphasis added).

1121 ALRC (April 2015), op cit1122 Ibid, at 6 to 71123 Ibid, at 146, 220 to 2211124 G yH(1994) 181 CLR 387 at 390 per Brennan and McHugh JJ; ALRC, op cit, at 2171125 Jones i/ Dunkel (1959) 101 CLR 298 at 309 per Menzies J1126 (2002) 214 CLR 4221127 Ibid, at [82], adopting the language of Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [84]

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Similarly in relation to the use of historically-sourced evidence, Gummow J noted in Wik Peoples v

State of Queensland^28 (Wik) that “[\]here remains lacking, at least in Australia any established

taxonomy to regulate such uses of history in the formulation of legal norms”1128 1129 (emphasis added).

This document is intended to provide such guidelines to the Federal Court and Courts hearing

appeals therefrom, as well as other Courts that are required to consider matters relevant to native

title. These Inference Guidelines have been prepared having regard to the existing and consistent

practices of the Courts in inferential reasoning generally and in native title matters in particular, as

well as with regard to concerns raised in relevant literature regarding the challenges for the sources of

evidence applicable to native title determinations.

Contents of these Inference GuidelinesThe information in these Inference Guidelines is intended to codify the principles identified in the case

law, as well as considerations from broader contexts, for the drawing of inferences in the process of

proof of connection requirements to determine native title determination applications. Judicial officers

are provided with guidance in relation to each of the following matters which are the subject of this

document:

Section 1 Rationale for Inference Guidelines

Section 2 Key principles in inferential reasoning

Section 3 Standards of proof

Section 4 Maintenance of connection

Section 5 Claimant oral evidence

Section 6 Archival challenges

Section 7 Expert witnesses

Section 8 Tactical burden and adverse inferences

Section 9 Disregarding prior extinguishment

How to use these Inference GuidelinesThese Inference Guidelines have been prepared with the intention of minimising repetition between

sections. They should therefore be read as a whole to consider the necessary principles relevant to

inferential reasoning regarding a native title claim groups’ maintenance or otherwise of the requisite

connection with the claim area.

However, there may be instances where specific regard needs to be had to the principles relevant to

inferential reasoning applicable to particular types of evidence. Sections 5, 6 and 7 are each directed

1128 (1996) 187 CLR 11129 Ibid, at 182 -183

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at different types of evidence that the Court will need to consider in native title trials, and these may

be referred to individually as necessary.

This document may also be referred to selectively in relation to specific issues relevant to connection

requirements and other matters arising under the Native Title Act. Section 4 is broken into

subsections (key principles; preponderance and weight of the available evidence and absence of

evidence to the contrary, inferential reasoning regarding relevant points in time; genealogical

evidence, geographic boundary evidence; and special considerations applicable to overlapping

claims) for this purpose.

Similarly, regard may be had to sections 8 and 9 on a standalone basis where guidance is sought on

the specific issues the subject of those sections.

These Inference Guidelines are limited to issues relevant to inferential reasoning and do not seek to

restate in detail the various requirements relevant to connection in a native title claim. These

Inference Guidelines should also be applied alongside other considerations that go to judicial

assessment of admissibility, credit and weight, which are only the subject of these Inference

Guidelines to the extent they are relevant to inferential reasoning specifically.

These Inference Guidelines are applicable both to native title determinations at first instance, and

appeals. The Full Federal Court has clearly stated that inferences drawn from other findings of fact

“cannot be regarded as credit-based findings of fact that are entitled to deference on appeal,” and

where the inferential reasoning of the trial judge may have been flawed, such matters may be the

subject of further consideration.1130

These Inference Guidelines may also be referred to by the Court in consent determinations, where

the Court will still need to satisfy itself of the veracity of inferences relied on by the parties given the

judgment in rem nature of native title determinations.1131 In this sense, the Courts can apply these

Inference Guidelines in exactly the same manner is they might in a litigated matter. However, the

Inference Guidelines should also be applied by respondent parties, particularly the Crown, in

considering the evidence of claimants and their own evidentiary material. The Inference Guidelinese

should therefore provide a useful supplement to connection guidelines adopted in various

jurisdictions.1132

The application of these Inference Guidelines to consent determinations may contribute to policy

considerations such as the capacity of native title to promote Indigenous economic development and

1130 De Rose v State of South Australia [2003] FCAFC 286 at [341]1131 For example, Lander v State of South Australia [2012] FCA 427 at [48] per Mansfield J1132 e.g. Queensland Department of Natural Resources and Mines, Guidelines for preparing and assessing connection material for Native Title Claims in Queensland, November 2016,https://www.dnrm.Qld.qov.au/ data/assets/pdf file/0003/108660/quide-preparinq-assessinq-connection-material.pdf (accessed17 June 2018); South Australian Crown Solicitor’s Office, Consent Determinations in South Australia: A Guide to Preparing Native Title Reports, 2004,https://www.lqa.sa.qov.au/webdata/resources/files/Consent Determinations in SA A Guide to Preparing Native Title Reports.pdf (accessed 17 June 2018); Western Australian Department of Premier and Cabinet, Guidelines for the Provision of Connection Material, February 2012, https.7/www.dpc.wa.qov.au/lantu/MediaPublications/Documents/Guidelines-for-the- provision-of-connection-material-Feb-2012-FINAL.pdf (accessed 17 June 2018)

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https://www.dnrm.Qld.qov.au/_data/assets/pdf_file/0003/108660/quide-preparinq-assessinq-connection-material.pdf

https://www.lqa.sa.qov.au/webdata/resources/files/Consent_Determinations_in_SA_A_Guide_to_Preparing_Native_Title_Re

http://www.dpc.wa.qov.au/lantu/MediaPublications/Documents/Guidelines-for-the-provision-of-connection-material-Feb-2012-FINAL.pdf

http://www.dpc.wa.qov.au/lantu/MediaPublications/Documents/Guidelines-for-the-provision-of-connection-material-Feb-2012-FINAL.pdf

reduce disadvantage, enhance trust and cooperation arising from native title negotiations, and reduce

the sheer economic cost of gathering and assessing detailed connection material.1133

Section 1 - Rationale for Inference Guidelines1.1 Beneficial purpose and other drivers

A driver for the development of these Inference Guidelines, and an influencing factor in their contents,

is the Preamble to and Objects of the Native Title Act. This is consistent with the terms of reference

for the ALRC Connection Report. The Preamble to the Native Title Act recognises the need for a

special procedure for the just and proper ascertainment of native title, in a manner that has due

regard for the unique character of native title rights and interests. This supports the need for

appropriate approaches to inferential reasoning, having regard to the evidentiary difficulties faced by

claimants as discussed in sub-section 1.3 of these Inference Guidelines.

Objects (a) and (c) in s 3 of the Native Title Act, namely the recognition and protection of native title,

and to establish a mechanism for determining claims to native title, support a similar conclusion. The

Preamble and Objects of the Native Title Act have been interpreted as affording that Act both a

remedial character and beneficial purpose.1134

Beyond matters of domestic law which compel a need for comprehensive, consistent and transparent

guidelines for inferential reasoning in native title matters, there are a number of broader policy

considerations which drive the need for an appropriate assessment of matters grounded in

historically-sourced evidence. There are international law drivers in relation to the rights of all persons

to know and transmit their histories and oral traditions, as well as obligations on states to provide

mechanisms to facilitate this, and rights of persons to participate in a process for the recognition of

traditional interests in land, such as the United Nations Declaration on the Rights of Indigenous

People,1135 the United Nations Commission on Human Rights Updated set of principles for the

protection and promotion of human rights through action to combat impunity,'1™6 and the International

Labour Organisation Convention on Indigenous and Tribal Peoples.1137

These matters can also have relevance to national aspirations to achieve reconciliation given the role

played by a transparent and fair historical record, as recognised for example in the findings of the

Canadian Truth and Reconciliation Commission.1138 Similarly, pluralist and democratic approaches to

observing and recording the past can be valuable for matters of national identity and legitimacy.1139

Methodologies of inquiry into the past also need to withstand community scrutiny and maintain public

confidence, because when an interpretation of historical events is employed for the purposes of a

1133 Duff, op cit, at 171134 Pareroultja v T/c/cne/- (1993) 42 FCR 32 at 44; 117 ALR 206 at 218 per Lockhart J; Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 per Lockhart, Lee and Sackville JJ; ALRC (April 2015), op cit, at 226; Bartlett, op cit, at 155 - 1561135 United Nations Declaration on the Rights of Indigenous People, op cit, at Articles 13, 15 and 171136 United Nations Commission on Human Rights, op cit, at Principles 2, 3 and 5 of Part II1137 International Labour Organisation, op cit, at Article 21138 Truth and Reconciliation Commission of Canada, op cit1130 Barkan, op cit, at 345

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judicial determination, “history becomes as fixed and unchangeable (or not) as is the law itself.”1140 An

example of this is apparent from the Full Federal Court’s reference in Anderson v Wilson1141 to the

High Court’s findings in Wik, that “[wjhether the history was right, wrong or indifferent, it had formed

part of the legal reasoning of the High Court and, to that extent, had become binding.”1142

Finally, there can be pedagogical benefits from a comprehensive, consistent and transparent

approach to such matters. For example, North J in Nangkiriny v State of Western Australia'"43

acknowledged that “[t]he evidence given in this case is preserved for history in the transcripts of

proceedings. In time it will contribute to creating an understanding which would not have existed

without this case.”1144

Relevant Considerations

> The beneficial purpose and remedial character of the Native Title Act support an interpretive

approach to evidence that is cognizant of the unique character of native title rights and

interests.

> Other factors, such as international law obligations, reconciliation and national identity, public

confidence and the pedagogical by-product of Court judgments support the need for

comprehensive, consistent and transparent treatment of historically-sourced evidence.

1.2 Evidentiary challenges

The requirements to successfully prove maintenance of connection in a native title claim, of:

> substantially uninterrupted acknowledgement and observance of traditional laws and customs

by each generation of a claim group since the acquisition of sovereignty;

> a connection with the land or waters the subject of the claim by those laws and customs; and

> the continued existence of a normative society, being a society united in and by its

acknowledgment and observance of those laws and customs, throughout that period,1145

are drawn from the definition of native title in s 223 of the Native Title Act.

1140 Selway, op cit, at 1531141 [2000] FCA 3941142 As observed by Selway, op cit, at 152; See also State of Western Australia v the Commonwealth [1995] HCA 47 at [1] and [9] per Dawson J; and State of Western Australia v Ward [2002] HCA 28 at fn 816 per Callinan J1143 [2002] FCA 6601144 Ibid, at [17]. Other examples of this have been identified as the judgments of Merkel J in Shaw v Wb/f [1998] FCA 389 and Von Doussa J in Chapman v Luminis Pty Ltd (No 4) [2000] FCA 1121. For examples of the preservation of historical expert evidence from Australian native title cases, see Owen, op cit (in relation to Bennell v State of Western Australia [2006] FCA 1243) and Cane, op cit (in relation to Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717)1145 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; 194 ALR 538 at [46], [47], [86] and [87]

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The very heavy burden these requirements place on native title claimants has been recognised in

various decisions of the Courts, which have noted:

> The “many deprivations and disadvantages following European settlement of Australia and the

limited record keeping of the earliest days” made proof by recorded details next to

impossible.1146

> The need to interpret evidence having regard to “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,” and accordingly evidence

should be interpreted cognisant of these evidentiary difficulties.1147

> That “[a]ny proceeding in which the Court is required to make findings as to traditional laws

and customs practised more than 150 years ago must necessarily rely upon evidence other

than that of the personal observations of witnesses.”1148

> “[T]he historical record is incomplete. ... The nature of these 'silences' and the manner in

which they should be addressed ... bears directly upon the approach the Court must take in

order to interpret the expert and witness evidence, and to derive the inferences that of

necessity must be made, in order to decide upon the issues in contention.”1149

> In native title cases there is a greater than usual “role for inferential reasoning, because of the

passage of time between the circumstances at or before sovereignty, and the circumstances

prevailing at the time the Court must determine,” given “the paucity and nature of any broadly

contemporaneous evidence” concerning the historical situation and that “the knowledge of the

old people of any claimant group can only reach back so far. There will be a gap in time, which

must be filled — if it can be filled — by the drawing of inferences.”1150

These matters have also been recognised beyond the judgments of the Courts. Other authors have

noted “Australian legal history, as far as cases involving Indigenous parties are concerned, is about

absence, about what is not available.”1151 This combined with the judicial interpretations placed on the

requirements arising from s 223 of the Native Title Act “requiring the proof of laws and customs at the

time of sovereignty, means that the inferential leaps necessary for a successful claim will be larger

than those required in conventional cases.”1152

Such matters are not entirely unique to native title claims, and arise in other areas of litigation as a

“definitive correspondence between knowledge and the physical world is an impossible ideal.”1153

Accordingly, Courts must seek out such knowledge rationally and in a manner that may lead to more

1146 Mason y Tritton (1994) 34 NSWLR 572 at 588 per Kirby P (as His Honour then was)1147 Ward v State of Western Australia (1998) 159 ALR 483 at 504 per Lee J; Jango v Northern Territory of Australia (2006) 152 FCR 250, [462] per Sackville J1148 Olney J in Yarmirr v Northern Territory of Australia (No 2) (1998) 82 FCR 533 at [21]1149 Daniel v State of Western Australia [2003] FCA 666 at [149] per RD Nicholson1150 Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132] and Narrier v State of Western Australia [2016] FCA 1519 at [389] and [390], both per Mortimer J1151 Curthoys, Genovese and Reilly, op cit, at 1411152 Carter, op cit1153 Ligertwood and Edmond, op cit, at 7

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reliable, better justified, and ultimately more accurate decisions. In addition to such epistemological

factors, this process is also subject to economic factors (given limited time and resources must be

considered, having regard to the epistemological benefits the procedure may bring) and moral factors

(to ensure equality of apportionment of risks allocation for errors, so balance should be sought

between the costs of being wrong and the rewards of being right).1154

Ultimately, as Brennan J (as His Honour then was) held in Mabo v State of Queensland (No 2J1155

(Mabo), the “difficulties of proof... afford no reason for denying the existence of a proprietary

community title capable of recognition by the common law.”1156 Hence the need to ensure the Courts

have at their disposal sufficient tools with which to navigate the vagaries of certainty of the evidentiary

record to adjudicate disputes with finality, and hence these Inference Guidelines.


> Inferential reasoning is necessary in many forms of litigation, because attaining absolute

knowledge of matters relevant to a party’s case is not always possible.

> Such reasoning is even more important in native title claims, due to the specific requirements

of the statutory definition of native title, which requires assessments of circumstances which

may:

o Pre-date the lived-experience of witnesses, and even relate to a period that spans

beyond two centuries.

o Raise additional evidentiary difficulties regarding the proof of a negative proposition,

namely no loss of maintenance of connection.

o Rely on evidence from claim group members with principally oral-only traditions and

no substantive written sources of reference (as discussed further in Section 5).

o Require regard to less than perfect archival records (as discussed further in

Section 6).

1.3 Over-riding qualification

However, whilst inferential reasoning is central to the delivery of the beneficial objectives of the Native

Title Act, there are limits to what the drawing of inferences can and should achieve. As Gleeson CJ,

and Gummow and Hayne JJ held in Yorta Yorta HC, Courts may be invited to draw inferences to

alleviate the difficult problems of proof faced by native title claimants, this “does not alter the

1154 Pardo, op cit, at 4; Stein, op cit, at 105 and 131; Josephson, op cit, at 1626 and 16311155 [1992] HCA 23; (1992) 175 CLR 11156 Ibid, at [53]

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requirements of the statutory provision,”1157 and much will “turn on what evidence is led to found the

drawing of such an inference and that is affected by the provisions of the Native Title Act.”1158

This approach is consistent with approaches to inferential reasoning in native title case law in

Canada, where the Supreme Court has held that notwithstanding the relevant Aboriginal

perspectives:

> “These must be balanced with the perspectives of the common law.”1159

> “There is a boundary that must not be crossed between a sensitive application and a complete

abandonment of the rules of evidence,” and “[c]laims must still be established on the basis of

persuasive evidence demonstrating their validity on the balance of probabilities” such that “the

evidence presented by aboriginal claimants should not be undervalued ... [but] neither should

it be artificially strained to carry more weight than it can reasonably support.”1160

It is also consistent with general theories of judicial inferential reasoning, where it is acknowledged

that “substantive law defines the hypotheses to be tested, the propositions to be proved, and formal

rules regulate the manner in which cases are prepared and the admissibility of use of evidence.”1161 1162

These matters are considered further in subsection 4.3 of these Inference Guidelines.


> Inferences may only be drawn in the context of the requirements of the Native Title Act.

> So notwithstanding the need to mitigate the evidentiary challenges faced by native title

claimants, the Court must always be satisfied that there is sufficient evidence to support

inferences which confirm the existence of a normative society and its connection to the claim

area through acknowledgement and observation of traditional laws and customs, substantially

uninterrupted since sovereignty.

Section 2 - Key principles in inferential reasoning2.1 General principles

Dixon CJ summarised the following general principles which apply to the drawing of an inference in

favour of a plaintiff’s case in Jones v Dunkel:"62

1157 [2002] HCA 58; (2002) 214 CLR 422 at [80]1158 Ibid1159 Lamer CJ in Van der Peet [1996] 2 SCR 507 at [49] and [50], Followed by Lamer CJ in Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at [82]1160 Mitchell v Minister for National Revenue [2001] 1 SCR 911 at [39] per McLachlan CJ, followed by Mortimer J in Narrier v State of Western Australia [2016] FCA 1519, at [323] and [404]1161 Anderson, Schumm and Twining, op cit, at 46 - 471162 (1959) 101 CLR 298 at 304 - 305

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> An inference must arise as an affirmative conclusion from the circumstances proved in

evidence.

> The inference must be established to the reasonable satisfaction of a judicial mind.

> In a civil case, you need only circumstances raising a more probable inference in favour of

what is alleged according to the course of common experience.

> More probable means that upon a balance of probabilities such an inference might reasonably

be considered to have some greater degree of likelihood.

> But such circumstances must do more than give rise to conflicting inferences of equal degree

of probability so that the choice between them is mere matter of conjecture - the Court cannot

choose between guesses, where the possibilities are not unlimited, on the ground that one

guess seems more likely than another or the others.

> The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of

the truth of which the tribunal of fact may reasonably be satisfied.

2.2 What falls short?

There are various guidelines from the Courts as to what will fall short of inference. Whilst the

distinction can be difficult to draw,1163 other guidance has been given as follows:

> If facts merely show it is possible that another fact may exist, this is only conjecture, which

may “range from the barely possible to the quite possible.”1164

> If “there are no positive proved facts from which the inference can be made, the method of

inference fails and what is left is mere speculation or conjecture.”1165

> The “characterisation of a reasoning process as one or the other occurs on a continuum in

which there is no bright line division, nevertheless the distinction exists,” with the test being

whether or not it is reasonable to draw the inference.1166

> It is not appropriate to infer by effectively choosing the most likely guess, as “the inference

must be available and be considered to be more probable than other possibilities.”1167

> A finding “must be established on the balance of probabilities and not merely by guesswork or

speculation where the evidence is effectively silent.”1168

Based on these authorities, the spectrum of matters that lead up to what may appropriately form the

foundation for drawing a valid inference can be summarised on a “Less Than Certainty Continuum,”

and only those propositions that sit on the right-hand side of that continuum will constitute valid

inferences.

1163 Jones v Great Western Railway Co (1930) 47 TLR 39 at 45; Lopes v Taylor (1970) 44 ALJR 412 at 4181164 Carr v Baker (1936) 36 SR (NSW) 301 at 3061165 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170; Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] 1606 FCA at [17] and [21] per Olney J; Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [807] per Mortimer J1166 Seltsam Pty Ltd v McGuinness (2000) NSWCA 262 at [84] and [88], drawing from the judgment in Bradshaw v McEwans, (1951) 217 ALR 1 at 5 and its application in Luxton v Vines [1952] 85 CLR 352 at 3581167 Jackson v Lithgow City Council [2008] NSWCA 312 at [12]1168 Coles Supermarkets Australia Pty Ltd v Bright [2015] NSWCA 17 at 169 -170

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Less Than Certainty Continuum

Conjecture or Speculation Possible

Guesswork

ProbableReasonable

induction from objective facts

2.3 Processes for inferential reasoning

There are a number of processes that may be adopted by the Court in applying inferential reasoning.

A simplified version of the approach attributed to John Henry Wigmore involves the following steps:1169

Steps Process

1. Assumption The starting point is the assumption that there is a logical

relationship between evidence and conclusions of fact.

2. Isolation of factum

probans and

factum probandum

Information experienced or supporting propositions {'factum

probans’) and propositions to be established by inference {“factum

probandum”) must be isolated. Conclusions to be inferred are

those alleged material facts (contended by a party as a factual

hypothesis) that would justify a certain determination by the Court,

having regard to the lines of argument taken by the parties.

3. Inferring A process of inferring intermediary facts that follow from the

intermediary facts evidence, from which further inferences are drawn until the ultimate

facts {"ultimate probanda”) can be regarded as discovered through

a series of inferences. Such steps involve the following two kinds of

inferences:

(a) Chains of Each individual chain of inference should be considered to

inferences (or determine support for a factual conclusion or a rival factual

conclusion. These assessments are made with regard to

1169 Ligertwood and Edmond, op cit, at 8 - 13, with reference to Wigmore, J.H. The Science of Judicial Proof (3rd edition), Little Brown and Co, Boston, 1937; Anderson, Schum and Twining, op cit, at xviii, 71 and 103 to 108; Heydon, op cit, at 15; Twining (1985), op cit, at 126

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Steps Process

“catenate considerations of relevance, credibility and probative force

inferences”) across the multiple steps of reasoning regarding the

relationship by which a probans supports a probandum.

(b) Inference of

one fact from

a number of

other separate

facts

Also known as converging inferences (where independent

items of evidence converge to support the probability of the

same conclusion, so that the inference to be drawn is as

strong as these constituent parts) or corroborative

inferences (focused on the credibility of separate witnesses

testifying in relation to the same proposition). Individual

chains should be considered together to assess the

relationship between the evidence and the inferred

conclusion. Alternative explanations can be assessed by

contrasting these against each other.

4. Probability The combination of inferences is then assessed having regards to

assessment concepts of probability.

Another approach the Court may adopt to inferential reasoning is “explanation-based reasoning.” This

involves the following two step process:1170.

Steps Process

1. Generating

potential

explanations of the

evidence

Determined with reference to the substantive law, which itself

makes provision for what triggers rights, interests, liabilities and

obligations (and as identified by the parties themselves in their

submissions).

2. Selecting the best

explanation from

the list of potential

ones as the actual

one

An explanation that provides the most understanding, being the

explanation which explains “more types of phenomena, explains

them with greater precision, provide more information about

underlying mechanisms, unify apparently disparate phenomena, or

simplify our overall picture of the world,” is to be preferred.

Hypotheses should be evaluated in isolation or in contrast with

others, with “better-ness” assessed by weighing explanations

against criteria such as greater explanation and explanatory power

(consilience), plausibility and coherence (with reference to

consistency with background knowledge), internal consistency,

1170 Pardo and Allen, op cit, at 229 - 232; Upton, op cit, at 189; Josephson, op cit, at 1626 to 1629; Nesson, op cit, at 1187 and 1210

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Steps Process

likelihood, simplicity, specificity, productive promise and being less

ad hoc.

Explanations should also take a contrastive form, to determine

between fact and foil and explain not only why one proposition is

preferred, but why it is preferred over another so that naked

inferences are not accepted without being tested against

satisfactory explanations to the contrary. Data can be disregarded if

its explanation is merely coincidence, misperception,

miscategorization, fraud, perjury, experimental error, noise, or some

similar phenomena.

2.4 Caution regarding generalisations, experience and perceptions

In many respects, inferential reasoning processes will be carried out by the Court having regard to its

own concepts of “common sense,” “general knowledge” or “experience of the common course of

events,” including be applying “generalisations” for the authentication of valid inferences.1171

The Court should identify the generalisation relied on to draw inferences and to test its strength or

plausibility. One method to do so is against the following generality, source and reliability axes, to

make a holistic assessment based on the extent to which a generalisation tends to “stack up” towards

the right-hand side of each axis.1172

1171 Martin v Osborn (1936) 55 CLR 367; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 - 274; Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [42] per Madgwick J; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [342] per Lindgren J; Twining (1985), op cit, at 143 and 1451172 Anderson, Schum and Twining, op cit, at 101 -102

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Generality Axis

Generalisations in the most abstract form

Generalisations made specific to the precise case

or context

Source Axis

Synthetic/intuiti ve generalisations with no

identifiable source

Generalisations based on repeated personal

experience and acquired knowledge

◄-

Reliability Axis

Strongly held biases or prejudices held

irrespective of available data

Commonly held but unproven beliefs

Scientific laws, well-founded scientific opinions and widely

shared conclusions from common experience

In applying generalisations, judicial officers should also be vigilant that their general knowledge and

experience does not create perceptions that unduly influence their approach to inferential reasoning.

The process may be coloured by a judge’s “personal and cultural assumptions and beliefs,” regarding

the causal regularities between the environmental inputs, behavioural outputs, and intentional states

sets of human agents.1173

The Courts have noted their consciousness of such matters during the process of considering

relevant evidence in native title claims on a number of occasions, including a shared tendency with

the archival material “to view the Aboriginal society through a Eurocentric lens.”1174 In the course of

drawing inferences and considering matters that feed into their inferential reasoning, judges therefore

need to be conscious to “peel back or accommodate” their own perceptions, to base their decisions

on what really happens in the world out there.”1175 This may require a “process of enculturation,”1176

whereby the judge engages in reasoning which is cognitively appropriate to the concepts involved,

1173 Mack, op cit, at 59; Connolly, op cit, at 122 and 1341174 Bennell v State of Western Australia [2006] FCA 1243 at [106] per Wilcox J; Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [43] per Madgwick J; Criminal Justice Commission, op cit, at 31; Strelein (2009a), op cit, at 801175 Ligertwood and Edmond, op cit, at 411176 Connolly, op cit, at 102

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and maintains, fine tunes or abandons assumptions and beliefs in the interpretation and engagement

with the evidence.1177


> Generalisation that underpin a certain inference should be tested against the generality,

source and reliability axes.

> To the extent the inferential process and general assessments of plausibility rely on the

“common sense” and background experience of individual judges, they should exercise

introspection to be self-aware of their own individual beliefs, values, standards, cultural

perspectives and experience, to test whether they bring any inherent biases to the process,

and modify their reasoning to offset this if necessary.

> Individual judges should also consider the matters the subject of Sections 5, 6 and 7, and take

into account their own inherent preferences for types of evidence and skillsets to properly

interpret different sources of evidence, having regard to those matters.

2.5 Caution for potential missing evidence

In applying a process such as one of those suggested in subsection 2.3, a further factor that should

be considered is whether the limited material available for the Court to have regard to in making its

judgment raises a likelihood that relevant evidence is unavailable, or whether the limited material is

sufficient to base a reasonable decision.1178

Whilst Courts generally don’t have the luxury of deferring judgment indefinitely pending the

identification of missing evidence, the inferential process should include regard for the potential that

changes in its underlying evidence base (particularly the weakest link in the chain of reasoning, being

that which rests on the least empirical evidence), might produce a different factual conclusion.1179

To do this, Courts should test the hypotheses the subject of causal inferences to ensure that the

process by which the data came to be observed is fully recorded, the more data the better, to avoid

“omitted variable bias” so that competing explanations are not ignored when drawing inferences.1180


> Courts should be vigilant for the potential for missing or unavailable evidence that could undo

the probability of an inference that may be drawn, and consider the likelihood for further

evidence and whether that evidence might reduce or increase the uncertainty relevant to a

potential inference. This is especially with regard to the weakest link(s) in a chain of reasoning.

1177 Ibid, at 99,157 and 1601178 Hodgson, op cit, at 733 to 734; Ligertwood and Edmond, op cit, at 391179 Stein, op cit, at 118; Epstein and King, op cit, at 50; Josephson, op cit, at 1626 and 16311180 Epstein and King, op cit, at 24, 77, 102, 103

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> Courts should consider whether the parties have cast their evidentiary nets sufficiently wide to

avoid putting judges in the position of drawing inferences based on “omitted variable bias.”

Section 3 - Standards of proofThe standard of proof for drawing inferences in civil trials, including native title matters, is the balance

of probabilities.1181 1182 Williams, Webb and Taylor JJ in Holloway v McFeeters"62 discussed the standard

of proof requirements that apply before an inference can be drawn in a civil case, with reference to

the following principles:

> In the absence of direct proof, “circumstances appearing in evidence giving rise to a

reasonable and definite inference” are sufficient.

> Such circumstances “must do more than give rise to conflicting inferences of equal degree of

probability so that the choice between them is mere matter of conjecture.”

> The inference may be drawn, with regard to the course of common experience, where it is

more probable from the evidence or admission, left unexplained.

> More probable means that upon a balance of probabilities such an inference might reasonably

be considered to have some greater degree of likelihood.

Other tests adopted include that the Court must “reach a level of actual persuasion,”1183 provided that

“such an inference might reasonably be considered to have some greater degree of likelihood; it does

not require certainty.”1184 In the native title context, Mortimer J in Narrier v State of Western

Australia,"85 drew the important distinction between:

> a decision on the balance of probabilities whether certain events or circumstances in the past

did or did not occur or exist, and

> “a decision attended by some more absolute form of certainty which purports to declare

absolutely that history ran its course in a particular way.”

Considerations which affect the answer to whether an issue has been proved on the balance of

probabilities include the “seriousness of an allegation made, the inherent unlikelihood of an

occurrence of a given description, or the gravity of the consequences flowing from a particular

finding.”1186 In this regard, Black CJ (in the minority) in Members of the Yorta Yorta Aboriginal

1181 Martin v Osborn (1936) 55 CLR 367 at 375; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 196 and 198; Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 at [17]; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 [340]; CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [116]1182 [1956] FICA 25; (1956) 94 CLR 470 at [8], with reference to Richard Evans & Co Ltd v Astley (1911) AC 674 at 687 and the judgment of Dixon, Williams, Webb, Fullagher and Kitto JJ in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 11183Spigelman CJ in Seltsam Pty Ltd v McGuinness (2000) NSWCA 262 at [135] and [136]1184 Kiefel J in Tabet v Gett (2010) 240 CLR 537 at [111]1185 [2016] FCA 1519 at [5]1186 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 - 362 per Dixon J. See also G v H (1994) 181 CLR 387 at 399 per Deane, Dawson and Gaudron JJ; Evidence Act s 140(2)

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Community 1/ State of Victoria1187 (Yorta Yorta FC)identified the requisite strength of the evidentiary

foundations for inferences leading to a negative determination must be very strong, given the:

irreversible consequences for Indigenous people of a finding, that long ago, their ancestors

ceased to acknowledge traditional law and observe traditional customs"88

These matters should also be balanced having regard to the consequences of a native title

determination for the world at large, given the in rem nature of such determinations,1189 as well as with

regard to the challenges for claimant oral evidence discussed in Section 5 and the matters relevant to

archival material considered in Section 6.


> When drawing inferences regarding connection in native title determinations, Courts should

consider the requisite strength of necessary supporting evidence to satisfy the balance of

probabilities, having regard to the gravity such a finding has for the claimants and their identity,

and the irreversible consequences of such a finding.

> However, such matters should be balanced with the consideration that, as a native title

determination is a finding in rem, the consequences extend beyond the claim group as

constituted.

> Equality of allocation of risk of error, and the comparative costs of being wrong and the

rewards of being right, as discussed in Section 1.3, are also matters for consideration here.

> The strength of evidence required to support an inference on the balance of probabilities,

whether in favour or to the detriment of a finding of maintenance of connection by the claim

group, should be considered with regard to the disadvantages underlying claimant reliance on

oral evidence and the challenges inherent in such evidence and the potential weaknesses in

archival material.

Section 4 - Maintenance of connection4.1 Gumcnm Principles

Selway J laid down the “Gumana Principles” in Gumana. These principles provide that “an inference

that a tradition or custom has existed at least since the date of settlement,” can be drawn where the

following general principles apply:1190

1187 [2001] FCA 451188lbid, at [63] and [85]. See similarly (although outside the native title context) in Shaw v Wolf ^998) 83 FCR 389 at [116]- [118] and [125] per Merkel J; Curthoys, Genovese and Reilly, op cit, at 212; Reilly (2000), op cit, at 4671189 Wooten in McCalman and McGrath, op cit, at 201190 [2005] FCA 50 at [201], Followed in Griffiths v Northern Territory of Australia (2006) 165 FCR 300 at [578]-[580] per Weinberg J; in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No. 9) (2007) 238 ALR 1 at [341] per Lindgren J; in Sampi v State of Western Australia [2010] FCAFC 26 at [63]-[65] per Mansfield and North JJ; in AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [724]; in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132]-[134] per

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> Inferences of a tradition or custom existing since contact may be drawn where:

o there is a clear claim of the continuous existence of a custom or tradition that has existed

at least since settlement; and

o this is supported by:

• creditable evidence from persons who have observed that custom or tradition; and

• evidence of a general reputation,

that the custom or tradition had “always" been observed; and

o there is an absence of evidence to the contrary.

> This does not mean that mere assertion is sufficient to establish the continuity of the tradition

back to the date of settlement.

4.2 Proof of custom

In addition to the “Gumana Principles” adopted by Selway J referred to in subsection 4.1, His Honour

also held that proof of “the existence of Aboriginal custom and Aboriginal tradition at the date of

settlement and, indeed, the existence of rights and interests arising under that tradition or custom”

could also be founded on the principles of “proof of custom.”1191 This can be evidenced in

circumstances where actual usage in all time was impossible to prove by living testimony, by calling

witnesses:

of middle or old age ... who state that, in their time, usually at least half a century, the usage

has always prevailed. That is considered, in the absence of countervailing evidence, to show

that usage has prevailed from all f/me.1192

Related inferences in native title matters identified by Lindgren J in Harrington-Smith on behalf of the Wongatha A/o 91193 include:_____________________________________________________________

> an inference that certain activities and behaviour observed since first contact are a

continuation of pre-sovereignty activities and behaviour (an inference of retrospective

continuance); and

> an inference that the activities and behaviour are attributable to pre-sovereignty and continuing

laws and customs (an inference of attribution).

There are a number of relevant considerations in relation to when inferences of proof of custom,

retrospective continuance and attribution may be drawn.1194

Bennett J; and in Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at [28] per McKerracher J1191 [2005] FCA 50 at [199] - [201]. Followed in Griffiths v Northern Territory of Australia [2006] FCA 903 at [578] - [580] and [642] per Weinberg J; in Bennell v State of Western Australia [2006] FCA 1243 at [457] per Wilcox J; in AB (deceased) on behalf of the Ngarla People v State of Western Australia (No 4) [2012] FCA 1268 at [724] per Bennett J; in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132] per Mortimer J; and in Narrier v State of Western Australia [2016] FCA 1519 at [315] per Mortimer J1192 Hammerton v Honey (1876) 24 WR 603 at 604 per Jessel MR. See also Brocklebank v Thompson [1903] 2 Ch 344 at 350; and New Windsor Corporation v Mellor [1975] Ch 380 at 386 and 3911193 [2007] FCA 31 at [342] per Lindgren J1194 Ibid, at [330] (with reference to Gleeson J in Mason v Tritton (1994) 34 NSWLR 572 at 574), [341], [342], [344] and [345]

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> The shorter the period that has to be covered, the better.

> Careful consideration should be given to the practice or activity and the frequency or rarity of

its occurrence as observed. In this regard:

o Observable conduct such as “[ajvoidance of the use of the names of deceased

people, in-law avoidance, [and] not marrying people within certain skin groups” could

found the basis for such inferences.

o Conduct, such as hunting or fishing, as the exercise of a traditional right is equivocal,

because such activities are so natural to common occupation rather than necessarily

to traditional law and custom.

> Whether Aboriginal people generally or a specific group were observed.

> Whether the Aboriginal people observed were transient or more settled in the claim area, and

what conclusions may be drawn from observations at one place about presence elsewhere.

> The circumstances of earlier times in so far as they are known.

> The general probabilities.

4.3 Preponderance and weight of the available evidence and the absence of evidence

to the contradictory

Cases both before and since Gumana have emphasised the need for both a preponderance and

weight of available evidence, and an absence of evidence to the contrary, for the purposes of

inferring connection to and presence of Aboriginal people in the claim area at sovereignty.1195 Where

the available evidence, on the balance of probabilities, supports a finding that one of the key elements

of connection is missing, this will be sufficient to negate any favourable inference.1196 But where there

is evidence to the contrary, this is not automatically fatal to the drawing of a positive inference,

provided that evidence is considered with all other evidence as a whole on the balance of

probabilities. For example, such evidence need not preclude an inference in favour of maintenance of

connection by the claim group where the evidence to the contrary only amounts to speculation.1197

1195 Ward v State of Western Australia (1998) 159 ALR 483 at 514 per Lee J; Olney J’s judgments in Yarmirr v Northern Territory of Australia (No 2) [1998] FCA 771 at [88] and [98] and Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923 at [66]; Daniel v State of Western Australia [2003] FCA 666 at [428] per RD Nicholson J; Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472 at [110] per Mansfield J; Griffiths v Northern Territory of Australia [2006] FCA 903 at [577] per Weinberg J; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [347] per Lindgren J; Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [95] per Mansfield J1196 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [115] - [117] per Barker J1197 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9 at [92] and [703] - [709] per Mansfield J

191 (Page

However, absence of evidence to the contrary is not sufficient for the drawing of positive inferences in

relation to connection in native title determinations. Consistent with the matters discussed in

subsection 1.3, the drawing of favourable inferences is also subject to there being “a proper

foundation” to do so based upon “the best evidence available.”1198 1199 Notwithstanding the evidentiary

difficulties (in the absence of statutory presumptions), “the Court may only draw reasonable

inferences, that is to say inferences reasonably drawn from facts proved in the proceeding.”1109

Accordingly, inferences have not been able to be drawn in favour of claimants where there is:

> A “complete lack of evidence.”1200

> A lack of consistency of indigenous evidence.1201

> Only fragments of evidence.1202

> Unsystematic evidence which does not “rise above surmise ... [or] conjecture."1203

Indeed, negative inferences, such as that the relevant group likely to have existed at sovereignty has

collapsed and been replaced by a new society of people, may be drawn in circumstances where there

is a lack of probative evidence.1204

Again consistent with the matters discussed in subsection 1.3, inferences must always be founded on

the matters required for the proof of native title, such as of the existence of a normative system of

laws and customs. Matters which are irrelevant to such matters will not suffice as a foundation for a

valid inference in support of a positive native title determination,1205 although such inferences may be

drawn from “subsidiary matters” which provide evidential support for findings in relation to the relevant

society and its normative system of laws and customs, such as “proof of the existence of songs about

the sea [which] is capable of showing that there were rules about the use of the sea even though the

proof of the songs themselves is not proof of the law or custom.”1206


> Inferences in favour of connection having been maintained in a native title claim must be

supported by the preponderance and weight of evidence, and an absence of evidence to the

contrary.

1198 De Rose v State of South Australia [2002] FCA 1342 at [570] per O’Loughlin J. Upheld on appeal by Wilcox, Sackville and Merkel JJ in De Rose v State of South Australia [2003] FCAFC 286 at [259]; See also Bodney v Bennell [2008] FCAFC 63 at [152] per Finn, Sundberg and Mansfield JJ; and Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [80] per Wilcox, French and Weinberg JJ1199 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [348] per Barker J1200 Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [120] per Madgwick J1201 Jango v Northern Territory of Australia [2006] FCA 318 at [504] per Sackville J1202 Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [619] per Jagot J. Upheld in Wyman on behalf of the Bidjara People v State of Queensland [20'\ 5] FCAFC 1081203 Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 15 at [81] and [84] per Jessup J. Upheld on appeal in Sandy on behalf of the Yugara People v State of Queensland [20M] FCAFC 1081204 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [295], [423], [430] and [432] per Barker J1205 Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 15 at [152] and [153] per Jessup J; Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [619] per Jagot J1206 Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26 at [77] per Mansfield and North JJ

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> Where there is evidence to the contrary, competing interpretations and inferences should be

assessed according to a weighting of their asserted supporting facts, on the balance of

probabilities.

> Notwithstanding any lack of evidence to the contrary, inferences must be reasonably drawn,

which will only occur where:

o There is support for such an inference from the evidence as a whole.

o “A proper foundation” to do so having regard to relevant, probative and cogent

evidence of sufficient detail and depth to support the inference, drawn from the best

evidence available.

o A basis for the inferential conclusion on the balance of probabilities.

> Proper foundations to draw inferences must be drawn from positive evidence of the continued

existence of a normative society which has maintained connection to the claim area

substantially uninterrupted since sovereignty through the observation and acknowledgement of

traditional laws and customs, or subsidiary matters which assist in drawing inferences about a

maintained existence of a normative society.

> A lack of evidence or evidence that falls short of matters adequate to draw a valid inference in

favour of native title claimants may found the basis for drawing a negative inference regarding

maintenance of connection.

4.4 Inferential reasoning regarding relevant points in time

Occupation of and the observance of traditional laws and customs in the claim area by ancestors of

the claim group at sovereignty may be difficult to prove by direct evidence, particularly where

settlement of an area or meaningful contact with Europeans came some time subsequent to

sovereignty. However, these matters may be inferred from:1207

> Records of settler observations.

> Geographic features, such as the extent to which the area is fertile and well-watered.

> Archaeological evidence.

> Expert evidence of connection between those who occupied the claim area at European

settlement and the Aboriginal peoples who occupied those areas at sovereignty.

> Oral evidence of older claim group members who had had contact with claim group members who lived according to traditional law and custom prior to a significantly earlier point in time.

1207 Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] 1606 FCA at [25] per Olney J; Daniel v State of Western Australia [2003] FCA 666 at [428] and [429] per RD Nicholson J; Lardil Peoples v State of Queensland [2004] FCA 298 at [102] per Cooper J

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Dowsett J’s judgment in Gudjala People (No 2) v Native Title Registrar1208 provides two methods for

inferring the maintained observance of traditional laws and customs between sovereignty and the

point in time when direct evidence becomes available (that is, when contact with Europeans was

sufficient for the development of the archive, or the time from which experiences are relayed down to

living witnesses). These are as follows:1209

Method Process

Reference to This method is directed at demonstrating continuity and connection

historical records through reference to actual events. Records of events are drawn upon to

support the inference that, as settlement has not affected the laws and

customs, they probably align with pre-sovereignty laws and customs,

simply because the group clearly existed shortly thereafter and has

continued since.

This method is only available where “the continuous history of the claim

group since the assertion of British sovereignty is well-known.”

Examination and

comparison of a

society and its laws

and customs at

multiple points in time

Where there is an absence of any recorded continuous history of the

society, an alternate approach is to establish continuity by inference

through examination and comparison of the societies and their laws and

customs at two or more points in time.

This requires a consideration of whether there is sufficient similarity

between the societies to suggest the society at the later point in time is a

manifestation of the society at the earlier point in time, and that its laws

and customs have been derived from that earlier society, and by further

inference, a relevant connection of such matters to pre-sovereignty.

Other considerations that may be relevant to an inference of whether a normative society continued to

exist according to its traditional laws and customs between sovereignty and a later date when archival

and other records came into existence include:

1208 [2009] FCA 15721209 Ibid, at [30] - [32]

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> The extent to which there was contact between indigenous and non-indigenous people in that

period and any resultant dislocation.1210

> Whether “the constitutional status and elaborate nature of the rules in question make it

improbable that the system arose in the relatively short period between sovereignty and the

time of the witnesses’ ‘old people’.”1211

> Whether oral evidence of the claim group members confirms they received instruction about

laws and customs from their grandparents, having regard to the likely timing that those

grandparents of the most senior witnesses would have received comparable instructions.1212

> If contemporary evidence establishes contemporary normative rules, from which the Court

may “draw inferences about the content of the traditional laws and customs at sovereignty”

and that “such a normative rule existed at sovereignty.”1213 1214

A further factor that Courts should consider when carrying out these assessments is in relation to

permissible change and adaptation in native title rights and interests. In this regard, Black CJ in Yorta

Yorta FC noted the need to assess evidence beyond:

the historical snapshot of adventitious content, which may in any event reveal little or nothing

of a process of adaptation and change then taking place. It may well be necessary to have

regard to events over a long period if misconceptions about adaptation and change are to be

avoided.'*214


> Occupation of and observation of traditional laws and customs by ancestors of the claim group

members in the claim area can be inferred from records of settler observations, favourable

geographic features, archaeological and other expert evidence and the oral evidence of older

claim group members who had contact with their forebears who lived according to traditional

law and custom prior to a significantly earlier point in time.

> Inferences of continuity between sovereignty and the point in time from when direct evidence

becomes available may be based upon historical records where available, or where not

available, based on an examination and comparison of the claim group at different points in

time, where both methods indicate no significant change to traditional laws and customs.

> Other considerations relevant to such inferential reasoning include:

1210 State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186 at [2] per Dowsett J; Rubibi Community v State of Western Australia [2001] FCA 607 at [79] per Merkel J1211 Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26 at [65] per Mansfield and North JJ1212 Neowarra v State of Western Australia [2003] FCA 1402 at [336] per Sundberg J; Griffiths v Northern Territory of Australia [2006] FCA 903 at [584] per Weinberg J1213 AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [724] per Bennett J1214 [2001] FCA 45 at [59]

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o The likelihood of disruption due to intervening events.

o The improbability of recent invention of laws and customs having regard to their

constitutional status and elaborate nature.

o Oral evidence that shows a chain of instruction dating back connection to an area

dating back multiple generations beyond the living claimants.

o Contemporary evidence of contemporary normative rules (having regard also to the

proof of custom factors discussed in subsection 4.2).

> Caution should be exercised not to draw inferences based on “an historical snapshot of

adventitious content,” but based on evidence which spans a sufficiently long period to assess

adaptation and change.

4.5 Genealogical evidence

Difficulties of proof of membership of community and that such difficulties should not afford a reason

to deny the existence of native title, was recognised by Brennan J (as His Honour then was) in

Mabo.1215 Proof of biological descent as an element of evidence of connection raises various

challenges, given the need to trace lineage decades prior to the keeping of genealogical records. For

this reason, a narrow or technical approach to proof of biological descent back to sovereignty should

be avoided.1216 The Courts have identified a number of relevant considerations regarding inferences

of genealogical connections.


> The probability of intervening events that would break the relevant biological links.1217

> The extent to which this can be traced by the claimants over multiple generations.1218

> The breadth of the spread of links asserted by claim group members.1219

> Corroborative historical material, similarities of ethnography and similarities with documented

ritual practices recorded elsewhere.1220

1215 (1992) 175 CLR 1 at 51 -521216 Mason v Tritton (1994) 34 NSWLR 572 at 588 per Kirby P; Yarmirr v Northern Territory of Australia (No 2) [1998] FCA 771 at [21] per Olney J; Griffiths v Northern Territory of Australia [2006] FCA 903 at [583] per Weinberg J1217 Mason v Tritton (1994) 34 NSWLR 572 at 588 per Kirby P1218 Yarmirr v Northern Territory of Australia (No 2) [1998] FCA 771 at [88] per Olney J1219 Ward v State of Western Australia (1998) 159 ALR 483 at 533 per Lee J1220 Rubibi Community v State of Western Australia [2001] FCA 607 at [158] per Merkel J; Griffiths v Northern Territory of Australia [2006] FCA 903 at [583] per Weinberg J

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> Evidence of community membership including self-identification and community recognition,

birth and residence records, and evidence of the continuing operation and vitality of descent

rules.1221

4.6 Geographic boundary evidence

Care should be taken in drawing inferences adverse to a native title claim merely due to difficulties of

proof regarding the geographic boundaries of a claim area. This was acknowledged by Brennan J in

Mabo/222 and more recently by RD Nicholson J in Daniel v State of Western Australia/223 who held

that “[t]he problems of proof dictate that boundaries need not be proven precisely or with absolute

accuracy.”1224 The Courts have identified a number of relevant considerations regarding inferences of

boundaries of a determination area.


> The use of the area and its surrounds, proximity to other parts of the claim area, and the

availability of resources in the area.1225

> Consensus or otherwise amongst the claim group and consistency or otherwise of claim group

evidence with ethnographic and historical data.1226

> From the weight afforded to the evidence as a whole.1227

4.7 Special considerations applicable to overlapping claims

Drawing inferences in favour of a positive determination will require additional considerations in areas

of overlapping and competing claims. The Courts have identified a number of relevant considerations

relevant to drawing inferences in favour of or to the detriment of respective overlapping groups.


> The extent to which the asserted rights and interests and the observed conduct and behaviour

of the competing claim groups have a normative content.1228

1221 Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 at [229], [232], [233] and [239] per Dowsett J1222 (1992) 175 CLR 1 at 51-521223 [2003] FCA 6661224 Ibid, at [113], with reference to Yarmirr v Northern Territory of Australia (No 2) (1998) 82 FCR 533 at [97]-[98] per Olney J and State of Western Australia v Ward [2000] FCA 191 at [202] per Beaumont and von Doussa JJ1225 Yarmirr v Northern Territory of Australia (No 2) (1998) 156 ALR 370, [97]-[98] per Olney J; State of Western Australia v Ward [2000] FCA 191 at [262] per Beaumont and von Doussa JJ ; Bodney v Bennell [2008] FCAFC 63 at [175] per Finn, Sundberg and Mansfield JJ1226 Banjima People v State of Western Australia (No 2) [2013] FCA 868 at [295], [296] and [316] per Barker J1227 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [202] per Barker J1228 AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [283], [314] and [936] to [938] per Bennett J

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> Whether the existence of adjacent areas of native title determinations or claims, particularly

any broader cultural bloc involved, may found inferences that are favourable or otherwise to

respective claim groups.1229

> Whether the Court can infer areas of shared country will depend on whether asserted rights

and interests in specific areas are compatible such that competing interests can co-exist, or

are irreconcilable.1230

Section 5 - Claimant oral evidenceWhilst no category of evidence starts with any presumptions of reliability, accuracy or superiority,1231

the Courts have consistently held in native title matters that the evidence of claim group members in

relation to their traditional laws and customs is “of the highest importance. All else is second order

evidence.”1232 This approach puts the Court in the position to reconsider a number of challenges to

other forms of evidence as discussed in Sections 6 and 7, and acknowledge and address cultural bias

across competing modes of evidence.1233

In this regard, there will be cases in which “the direct evidence of witnesses is of a detail and depth,

that is, a quality, that enables the Court to reasonably infer, on the basis of the direct Aboriginal

evidence and reputation in the relevant Aboriginal community," that the matters relevant to proof of

connection are made out.1234 However, claimant evidence may be deprived of weight where it does

not cover all of the matters the subject of other evidence.1235

In considering inferences that may be drawn from the oral evidence of native title claimants, the Court

should have regard to the significant cultural influences on Aboriginal and Torres Strait Islander

people that, if misinterpreted, raise issues of credibility.1236 The Court should be “cognisant of the

linguistic, cultural and historical factors that can adversely impact upon Indigenous witness evidence,

and, to the extent the law provides, exercise its powers to ameliorate that impact.”1237

Where these factors are not given sufficient account in the trial process, Aboriginal people may feel

uncomfortable, resentful, fearful, overwhelmed or offended; not be adequately understood or able to

1229 Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [706], [707] and [709] per Mansfield J1230 Ibid, at [710]1231 Narrier v State of Western Australia [2016] FCA 1519 at [404] per Mortimer J1232 Yarmirr v Northern Territory of Australia (No. 2) (1998) 82 FCR 533 at [560]; De Rose v State of South Australia [2002] FCA 1342 at [318] and [351]; De Rose v State of South Australia [2003] FCAFC 286 at [264] - [265]; Sampi v State of Western Australia [2005] FCA 111 at [48]; Jango v Northern Territory [2006] FCA 318 at [287] - [288]; Sampi v State of Western Australia [2010] FCAFC 26 at [57]; Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No. 2) [2010] FCA 643 at [100]; Bularnu Waluwarra & Wangkayujuru People v State of Queensland (No. 3) [2014] FCA 528 at [149]; Narrier v State of Western Australia [2016] FCA 1519 at [318]1233 Strelein (2000), op cit1234 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [313] per Barker J1235 Neowarra v State of Western Australia [2003] FCA 1402 at [41] per Sundberg J1236 Mykyta, op cit, at 1211237 Byrne, op cit, at 11

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convey their point of view and/or understand what is happening; feel the subject of injustice; and may

be treated unfairly or unjustly.1238

Issue Relevant Considerations

Difference of The Courts should be alert for possible misunderstandings of and by

language and non- witnesses where:

verbal .> Anglo-Australian English is not their first language.

communication> Miscommunications may arise due to the stressful nature of the

Court.

> There are differences of cultural significance of non-verbal

communications.

Where there are doubts about a witness’ ability to express him or herself in

English, witnesses should be permitted to give their evidence in their first

language.1239

This may require the assistance of interpreters1240 or anthropologists, who

may assist claimant witnesses to provide a full and coherent testimony in

circumstances they are otherwise unaccustomed to,1241 and assist the Court

with the meaning and significance of what Aboriginal witnesses say and

do.1242

Avoidance of eye

contact and

silences

Courts should be conscious that:

> Indigenous witnesses may avoid of eye contact with Counsel or the

Judge, as a matter of respect rather than as a sign of dishonesty.

> Indigenous witness testimony may involve what seem to be extended

periods of silence or an unwillingness to answer, possibly due to:

o A lack of support for the proposition put.

o Feelings of embarrassment or shame regarding their ability to

respond.

o A belief that they have already sufficiently responded.

In such circumstances:

1238 Judicial Commission of New South Wales, op cit, at 22061239 De Rose v State of South Australia [2002] FCA 1342 at [252] per O’Loughlin J1240 Connolly, op cit, at 205; Neate in Horrigan and Young, op cit, at 288 - 290; Supreme Court of Queensland, op cit, at 98 - 101; Judicial Commission of New South Wales, op cit, at 23091241 Jango v Northern Territory of Australia [2006] FCA 318 at [292] per Sackville J; Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [474] per Jagot J1242 Jango v Northern Territory of Australia [2006] FCA 318 at [89] per Sackville J; Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [478] per Jagot J; CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [119] per Barker J

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it is vital that no-one in the court allows any culturally-determined

assumptions about what they believe looks trustworthy and what

does not to unfairly mislead or influence their assessment of the

credibility or trustworthiness of an Aboriginal person.'243

Accordingly, Courts should exercise caution in drawing inferences based on

an assessment of candour according to Western preconceptions of such

matters.

Limits on rights or Knowledge in relation to traditional laws and customs and regarding country

abilities to speak within a claim group may culturally be the subject of an “information

economy,”1243 1244 and only certain persons may have the knowledge and

authority to speak in relation to certain matters.1245 This is because:

laws and customs are part of a knowledge system in which

information and knowledge is restricted and decentralised for the

protection and preservation of those same laws and customs.'246

Courts should therefore have due regard to whether a witness is subject to

cultural restrictions on his or her rights or abilities to speak on a certain

topic, or to speak on such matters in front of certain audiences.

Again such matters should be properly considered, to ensure inferences are

not improperly drawn regarding a witness who is inappropriately assessed

as being evasive in their responses.

However, this may not always be the reason for a reluctance or inability to

share information - and an inference may otherwise be drawn that the detail

is simply not known having regard to all the evidence.1247

Contrasting

information

exchange

methods, and

suggestibility,

gratuitous

concurrence and

scaffolding

The reception of oral evidence in the Court should be done in a manner

vigilant for potentially inherent challenges for indigenous witness’ testimony

in the adversarial system. Courts should remain conscious that indigenous

witnesses may be accustomed to:

> More indirect and gradual approaches where personal questions are

only asked when some understanding has been established.

> Narrative methods to exchange of information.

1243 Judicial Commission of New South Wales, op cit, at 23061244 Neate in Horrigan and Young, op cit, at 283; Jango v Northern Territory [2006] FCA 318 at [294] per Sackville J1245 Sutton in Finlayson and Fingleton, op cit, at 22 to 231246 Black, op cit, at 241247 Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [654] per Jagot J

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> Ways that avoid open disagreement or criticism.

Negative and “either-or" questioning can be particularly confusing and the

answers therefore unreliable, and question and answer methods generally

have the potential to be socially distressing for indigenous witnesses, as

singling out an Aboriginal person for interrogation in front of an audience

can cause shame.1248

Similarly, particularly in cross-examination, Courts should be mindful of the

potential amongst indigenous witness responses of suggestibility,

gratuitous concurrence or scaffolding. As Blackburn J noted in MHirrpum

v Nabalco1249 that by virtue of Aboriginal peoples’ natural courtesy they may

be:

easily "led" by a leading question, if by any possibility the terms of

the question are such as to permit agreement with the answer

suggested.'250

Caution should be exercised so that inferences are not drawn that

misconstrue claim group members’ cultural approaches to:

> Showing deference to, and building rapport, with the questioner.

^ A means of conveying cooperation.

> Avoiding conflict.

> Signifying the futility of the interrogation process.

> Avoiding admitting a lack of understanding of the question.

> Just wanting to get things over and done with.

> Geared towards establishing or maintaining a relationship which is

central to the exchange of information in Aboriginal culture.1251

Although again, this is a matter for consideration in light of all the evidentiary

circumstances and may not always be the case.1252

1248 Judicial Commission of New South Wales, op cit, at 2312; Supreme Court of Queensland, op cit, at 90 and 104; Criminal Justice Commission, op cit, at 19, 20 and 23; Neate in Horrigan and Young, op cit at 291; ALRC (February 2006), op cit; Byrne, op cit, at 4 to 51249 (1971) 17 FLR 1411250 Ibid, at 1791251 Supreme Court of Queensland, op cit, at 90 to 92 and 94; Judicial Commission of New South Wales, op cit, at 2312; Fades, op cit; Criminal Justice Commission, op cit, at 21 to 22, 27 and 51; Flynn and Stanton, op cit; Kerr, op cit; Mykyta, op cit, at 1231252 Jango v Northern Territory of Australia [2006] FCA 318 at [298] per Sackville J

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Different

conceptions of

time and place

Courts should be aware that Aboriginal people often have different

conceptual approaches to communicating certain matters. In this regard:

> In relation to dates and times, Aboriginal oral history is often

grounded in seeking to establish meaning for the past in the context

of the present, with time having less relevance as behaviour and

events “are described in a continuum in relationship to land sites.”1253

> In relation to directions and distances, as “Indigenous claimants may

describe their country by reference to geographical and topographical

features, to seasonal changes in the land or to shared boundaries

with other groups spread across a swathe of land which cannot be

identified in the way non-indigenous people might identify a fence

line.'1254

Again, these differences should be accounted for in any assessment of a

witness’ evidence so that matters of probability and weight are not unduly

discounted for want of direct correlation with Western approaches to such

matters.

Speech, hearing

and memory

impairment

In some cases, Courts should be conscious:

> That a witness may suffer from medical ailments that result in

impairments to hearing and/or speech, and should ensure these

matters are properly factored into the Court’s overall assessment of

the witness’ evidence.

> Of the potential for limitations on the reliability of memory generally,

particularly in relation to the potential for distortion over time and

confirmation bias. The spoken word passed down from forebears “is

at risk of being influenced and distorted in transmission through the

generations, by, for example, fragility of recollection, intentional and

unintentional exaggeration, embellishment, wishful thinking, justifiable

sense of grievance, embroidery and self-interest.”1255

Having regard to all of the above, the epistemic conditions applicable to a native title trial may be

entirely or partly non-conducive to the judicial acquisition of cultural concepts that should be factored

1253 Attwood, B. quoted in Gara in Paul and Gray, op cit, at 79; McGrath in McCalman and McGrath, op cit, at 255;1254 Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [131] per Mortimer J1255 Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 at [143] per Callinan J; Bennell v State of Western Australia [2006] FCA 1243 at [449] per Wilcox J; and Wyman on behalf of the Bidjara People v State of Queensland (No 2) 2013] FCA 1229 at [664] per Jagot J

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into the inferential process.1256 The Court may seek to alleviate such cultural and linguistic

complications during its consideration of evidence and inferential reasoning, by applying one or more

of the following mechanisms at its disposal under the Native Title Act, Federal Court of Australia Act

1976 (Cth) (FCA), the Federal Court Rules 2011 (Cth) (FCR), and the Evidence Act 1995 (Cth)

(Evidence Act) to mitigate these challenges ahead of applying the Court’s inferential reasoning to

such matters:

> Orders in relation to restrictions on access to evidence applying to certain people (such as

gender specific restrictions and suppression or non-publication orders), methods for giving

evidence (including group evidence), locations for the giving of evidence (including on

country), the giving of evidence wholly or partly in the narrative form, and generally for the

purpose of taking into account the cultural or customary nature of the evidentiary subject

matter.1257

> Ordering a National Native Title Tribunal inquiry in the event a more flexible approach might

benefit the identification of factual evidence from the oral testimony of claimants.1258

> Having regard to matters that the Court sees, hears or otherwise notices during a

demonstration or inspection.1259


> The weight afforded claimant oral evidence and any inferences drawn from it should occur

having regard to the primacy placed upon it in the case law, although still having regard to the

evidence as a whole and the matters the subject of subsection 4.3.

> Consciousness of the limitations posed by the adversarial process for indigenous witnesses

should be brought to bear on the inferential reasoning process. The Court should seek to draw

inferences in a bi-cuitural context and ensure potential cultural biases do not colour inferences

that may be drawn from the demeanour of an indigenous witness, including inferences of

credibility or otherwise, having regard to the factors and issues referred to above.

> However, these matters are not absolute and should be considered, along with potential

issues arising regarding reliability of memory, with regard to the whole of the evidence.

> Courts should consider whether alternative procedural methods and evidentiary approaches

available to them under the Native Title Act, the Evidence Act, the FCA and the FCR would

alleviate the complexities of claim group member oral evidence, and in particular, assist the

Court in its overall inferential reasoning which might otherwise be impaired by such

complexities.

1256 Connolly, op cit, at 194 and 198-1991257 Federal Court Rules 2011 (Cth) 34.120(1), 34.120(2), 34.121, 34.123, 34.125, 34.127, Federal Court Act 1976 (Cth) ss 17(4), 37AF and 37AG, Evidence Act 1995 (Cth) ss 26 and 29(2)1258 Native Title Act 1993 (Cth) s 138B1250 Evidence Act 1995 (Cth) s 54

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Section 6 - Archival challengesGiven the specific requirements of proof in native title matters, archival materials may feature

significantly amongst the evidence. The mere fact that documents are located in the archives does

not guarantee “their indisputable accuracy: their survival may have been haphazard, they may have

been forged, and in themselves they may signify little.”1260

The application of the inferential process to archival evidence should be done conscious of the

attributes of the archive that lend themselves to suggestions of discontinuity. In so doing, Courts

should draw (or decline to draw) inferences from archival material having regard to issues of context

and genre.

Issue Relevant Consideration

Context Because “Australian legal history, as far as cases involving Indigenous parties are

concerned, is about absence, about what is not available”1261 (as discussed

previously in subsection 1.2), any inferences drawn from archival material should be

with regard to the broader contextual evidence, to mitigate gaps in the record.

Relevant considerations in this regard include:

> How the material fits with the wider literature applicable locally and to the

broader region, and through educated guesses on the basis of this

knowledge.

> Drawing on the various perspectives offered by the texts.

> The impacts of external factors such as Government policies and frontier

cultures.

> Corroboration or contradiction by different forms of evidence (including oral

evidence).1262

Expert witnesses can provide assistance to the Courts in applying inferential

reasoning to the archive in light of these issues. Experts can provide the

generalisations of knowledge that can influence the inferences drawn from the

evidence, and expose the historiographic biases in the record by fleshing out

competing versions of history and contextualising versions of historical

arguments.1263

1260 Heydon, op cit, at 2131261 Curthoys, Genovese and Reilly, op cit, at 1411262 Choo in Toussaint, op cit, at 196; Neate, in Horrigan and Young, op cit, at 314 - 315; Choo and O’Connell in Paul and Gray, op cit, at 17 and 19-20; Gara, in Paul and Gray, op cit, at 73; Ginzberg, op cit, at 841263 Carter, op cit; Reilly (2000), op cit, at 472; Osiel, op cit, at 296; Skyring in Choo and Hollbach (2003), op cit, at 75

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Filling the gaps can also be achieved through the analysis and weighting of the

archive in the context of claimant oral evidence which addresses the same

matters.1264

Genre Courts should also apply inferential reasoning to archive material having regard to

the “genre,” or what an historical text was written for and a consciousness that the

motivations and cultural and political perspectives of the recorder may influence

what is recorded.1265

As an historical source document is only as objective as its author, the archival

record may be invalidated by:

> Particular preconceptions, biases or prejudices of the author, such as

ethnocentric views and historical assumptions in relation to the nature of

Aboriginal people in areas of more intensive European occupation (the "settled

south”).

> The level of qualifications of, and limits on understanding of language and

culture, by the author.

> Limited exposure and access to information because of efforts to reveal very

little to outsiders, or because observations are made at the wrong time or

absent knowledge of what to look for.

> Possible ulterior motives by the author.

> An absence of pre-contact records, and post-contact records only documenting

a situation that is disturbed by European influence.1266

This may result in the recorded behaviour of Aboriginal people being atypical due to

the presence of the European observer, susceptible to error given differences in

language, and a focus on discontinuities more so than continuities that may

overstate the extent of loss of connection, Consequently, Courts should maintain

consciousness of these genre factors in the inferential process, and ensure this is

conducted through contextual analysis, reflexivity and familiarity with Aboriginal and

Torres Strait Islander versions of history.1267

1264 Vincent and Land, op cit, at 211265 Rose in Paul and Gray, op cit, at 371266 Commonwealth v Yarmirr [1999] FCA 1668 at [351] per Merkel J; Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 at [58] per Black CJ; Rubibi Community v State of Western Australia [2001] FCA 607 at [37] per Merkel J; Daniel v State of Western Australia [2003] FCA 666 at [149] per RD Nicholson J; Risk v Northern Territory of Australia [2006] FCA 404 at [135] per Mansfield J; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 at [349] and [441] per Lindgren J1267 Reilly (2006), op cit, at 464 - 465; Attwood (2005), op cit, at 159 - 160; Irvin, op cit, at 24; Hemming in Paul and Gray, op cit, at 54

205 (Page

These matters may be considered with the benefit of specific statutory guidance. The Evidence Act

provides that if a question arises about either the relevance of a document, or the application of a

provision of that Act in relation to a document, the Court may examine the document and draw any

reasonable inferences from it, including in relation the document’s authenticity or identity. In relation to

questions about the application of a provision of the Evidence Act, the Court may also draw

inferences from other matters from which inferences may properly be drawn.1268 These other matters

may include oral evidence from a Party, which may be a basis for a finding of weight in relation to the

document.1269

Guidance for the assessment of archival evidence in the inferential process is also available from the

approaches taken in non-uniform evidence jurisdictions. Whilst these factors do not feature in the

Evidence Act, they are useful references to have in mind for the discretionary processes of inference

drawing and attaching weight.1270 Such matters are set out in the relevant considerations below, and

whilst it involves some differing legal concepts, a judicious application of these principles to archival

material may have similar effects to the application of the rule of contra proferentem to the

interpretation of treaties by the Waitangi Tribunal in New Zealand, the Canadian Supreme Court and

the US Supreme Court. The commonality amongst these matters is an interpretation of a document

against its author “in order to equalise the asymmetry between those who had the power to write ...

and those who did not.”1271


> In light of the matters referred to in this Section and the approaches suggested therein, the

Court should consider the authenticity and identity of archival material having regard to its

abilities to draw inferences under Evidence Act, including matters of weight in the context of

competing oral evidence.

> Other inferential considerations relevant to inferences that may be drawn from archival

material include:

o All the circumstances from which inferences can reasonably be drawn regarding the

accuracy of a statement.

o Whether the statement was made or information recorded in it was supplied,

contemporaneously with the occurrence or existence of the relevant matters.

o Whether the statement maker or supplier of the information or keeper of the document had

any incentive to conceal or misrepresent facts.

1268 Evidence Act 1995 (Cth) ss 58 and 1831269 Itaoui v Yamaha Motor Finance Australia Pty Ltd [2009] NSWSC 1363 at [17] per Schmidt J1270 Evidence Act 1929 (SA) s 34D; Evidence Act 1906 (WA) s 79D(1)(a) and (b) and s 79D(1)(c) to (g); Evidence Act 1977 (Old) s 1021271 Johnson in Attwood, Chakrabarty and Lomnitz, op cit, at 109; Strelein (2000), op cit; Belgrave, op cit, at 235

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o Whether the information was of a kind which was collected systematically or pursuant to a

duty to do so.

o The reliability of the means of any applicable reproduction or derivation.

Section 7 - Expert witnessesInferential reasoning may operate on expert evidence in native title claims, just as it may on the oral

evidence of claimant witnesses.1272 Whilst the reasoning of both expert witnesses and the Court will

involve the drawing of inferences, ultimately the inferences to be drawn is a matter for the Court.1273

The Court must therefore be put in a position to critique the manner in which the expert arrived at his

or her conclusion, particularly having regard to the validity of the bases from which the expert

infers,1274 the rigour brought to the interpretation of the primary materials, and the weight to be

afforded the underlying factual premises.1275 Accordingly, expert reports and testimony must:

> Be “comprehensible and reach conclusions that are rationally based,” and reveal the process

of inference that leads to the conclusions so it can be tested and its reliability judged.1276

> Identify the facts assumed to be true and which are asserted as justifying the opinion, so that

these can be evaluated and measured against the evidence.1277

> Provide a sufficient basis to assess whether an expert’s inferences are drawn through the

exercise of the relevant standard of study, training or experience.1278

> Not fall short of being valid inferences such as to be mere speculation, surmise or conjecture,

or be lacking in objectivity.1279

Inferences that may be drawn from expert evidence will also be affected by the weight given to such

matters in the context of claimant oral evidence and archival evidence,1280 and where contested by

other expert evidence, by the extent to which the expert and claimant oral evidence coalesce.1281 A

1272 Narrier v State of Western Australia [2016] FCA 1519 at [391] Mortimer J1273 As stated by Lee J during the course of the trial in Ward v State of Western Australia (1998) 159 ALR 483 and quoted by Choo in Kirkby and Coleborne, op cit, at 2721274 Risk v Northern Territory of Australia [2006] FCA 404 at [468] - [470] per Mansfield J1275 Ibid. Similarly, see Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31at [433] per Lindgren J1276 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 389 - 390 per Anderson J1277 HG v The Queen (1999) 197 CLR 414 at 428 per Gleeson CJ; Australian Securities and Investments Commission v Rich[2005] NSWCA 152 at [92], [105] and [132] per Spigelman CJ; Federal Court of Australia Expert Evidence Practice Note (GPN- EXPT), J L B Allsop, Chief Justice, 25 October 20161278 Neowarra v State of Western Australia [2003] FCA 1399 at [23] per Sundberg J; Daniel v State of Western Australia [2000] FCA 858 at [30] per RD Nicholson J; Jango v of Australia Northern Territory (No 2) [2004] FCA 1004 at [54] and [55] per Sackville J1279 HG v The Queen (1999) 197 CLR 414 at 428 per Gleeson CJ; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [28] and [413] to [430] per Lindgren J; Jango v of Australia Northern Territory (No 2) [2004] FCA 1004 at [11], [326] and [338] per Sackville J; Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 at [122] per Dowsett J; Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [132] per Madgwick J; Risk v of Australia Northern Territory [2006] FCA 404 at [121] to [123]. [132], [133], [137] and [138] per Mansfield J1280 Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 at [52] per Merkel J1281 Bennell v State of Western Australia [2006] FCA 1243 at [789] per Wilcox J

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Court should also be vigilant for inferences drawn by experts by reference to archival material, without

due regard for the matters the subject of Section 6 of these Inference Guidelines.1282

The Court should have regard to the potential for limits on definitive and fact-based conclusions, and

the limitations on objectivity and accuracy, to affect the inferential reasoning processes of experts,

when drawing its own inferences from them.


Definitive The types of expertise drawn upon in native title claims (such as anthropology and and fact-based history) is largely indeterminate and often contested, and the interpretations and

conclusions conclusions may be provisional and inevitably subject to new perspectives and

interpretations through later analyses.1283 As Former Chief Justice Mason has

acknowledged, there “is no one ‘right’ view of Australian history.”1284

Accordingly, the Court may need to have regard to issues around indeterminacy

and omitted variables, as discussed in subsection 2.5.

Similarly, the task of separating basel facts from opinions or interpretations by

anthropologists may be complicated by the nature of the epistemology involved,

which does not draw such a ready distinction and comprises “many strands of

knowledge and interpretation.”1285

Objectivity Similarly, the types of expert witnesses called in native title claims have been

susceptible to accusations of being, of their professional nature, less than

objective. “The very nature of anthropological inquiry demands that practitioners

engage in social relationships which necessarily result in the development of

human relationships,” which may raise a perceived lack of objectivity.1286

Similarly, many historians have alleged the works of others are invalidated by

subjective outlooks and personal agendas.1287

Trends in academic circles may also underpin claims of accuracy based upon

purely theoretical considerations, and bias is a particular risk when considerations

of loyalty to a “prevailing paradigm,” or to a client, intrude.1288

1282 Narrier v State of Western Australia [2016] FCA 1519 at [289] per Mortimer J1283 Sherry, op cit, at 441; Byrnes, op cit, at 225; Attwood (2005), op cit, at 161; MacIntyre and Clark, op cit, at 131284 Mason in MacIntyre and Clark, op cit, at viii1285 Palmer (2007), op cit, at 8, 10 and 141286 Ibid, at 5; Palmer (2011), op cit, at 61287 Inter alia, Blainey, op cit, at 49 and 125; Windschuttle, K. “Foreword,” in Dawson, op cit at vii and at ix, with particular reference to Reynolds (1996), op cit; Windschuttle (December 2000), op cit; Windschuttle (2002), op cit, at 5 - 7 and 400 - 404; Windschuttle (1996), op cit, at xi; Manne in Manne (2003), op cit, at 7; Attwood (2005), op cit, at 62, 81 and 122; Manne (2005), op cit, at 310; Reynolds in Manne (2003), op cit, at 135; Ryan in Manne (2003), op cit, at 255; Attwood in Attwood and Foster, op cit, at 176 and 181; Attwood (2005), op cit, at 180; Attwood (2003), op cit, at xiv and 74; Rowley, op cit, at viii; Evans (1999), op cit, at 10 and 18; Reynolds (1999), op cit, at 4, 124 and 244; Reynolds (1995), op cit, at 1 and 198 - 200; Reynolds (1996), op cit, at 245; Bagshaw, op cit, at 1; MacIntyre and Clark, op cit, at 2181288 Crispin, op cit, at 9 and 13; Crispin, in McCalman and McGrath, op cit, at 173; Ray in McCalman and McGrath, op cit, at 110

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Error Factors which may make expert witness immunity from error unattainable include:

> The ubiquitousness of mistakes in methodology, logic and competence.

> The validity of propositions stated in relevant academic or professional

literature will affect the validity of conclusions drawn.

> Subconsciously assumed intellectual constraints excluding consideration of

relevant, perhaps decisive, issues.

> Partial and selective use of supporting material.1289

The Courts can meet such challenges in a number of ways, in addition to the matters referred to

above regarding testing primary facts assumed or relied upon and the rigour of the process applied by

the expert in drawing inferences. Such methods include:

> Having regard to overriding duties in retainers, clearly defined instructions to constrain the

potential for advocacy, transparent and fulsome record keeping, and inclusion and

consideration of adverse evidence in reports (not left to arise only on cross-examination).1290

> Assessing an expert’s willingness to state views contrary to the case of the party that called

him or her, make appropriate concessions during cross-examination, circumspection about

interpretative claims, and identification as speculation opinions offered on meagre data.1291

> Making use of the measures to mitigate difficulties in inferential reasoning, including particular

sequencing for examination and cross-examination of multiple experts, joint reports, expert

conferences, and “Hot Tub” conferencing and concurrent expert evidence,1292 or the conduct of

an inquiry by the National Native Title Tribunal where findings of fact necessary to underpin

inferential reasoning are particularly complex.1293


> Expert reports must identify factual premises as well as transparency of the expert’s

methodology. Failure to do so will hinder the Court’s ability to determine whether the opinion

meets the relevant requirements of being wholly or substantially founded on specialised

knowledge based on that person’s training, study or experience, as well as the Court’s ability

to exercise its own judgment and draw its own inferences having regard to the supporting

facts, assumptions and interpretive processes adopted.

1289 Crispin, op cit, at 7 and 10; Fulcher in Hiley, op cit, at 53 - 54; Fulcher, op cit, at 39 - 431290 Chalk, op cit, at 91291 Burke (2011), op cit, at 81 - 82, with reference to the approach of Dr Beckett, the anthropological expert witness called by the claimants in Mabo v State of Queensland [1992] 1 Qd R 781292 Federal Court Rules 2011 (Cth) 23.151293 Native Title Act 1993 (Cth) s 138B

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> The validity of inferences drawn by expert witnesses should be tested and scrutinised using

the same principles that judges themselves apply in their own inferential reasoning.

> There is room for error in the expert material relied on by the Courts in drawing inferences,

particularly as a result of selective and partial use of material. Expert evidence may also be

influenced by the subjectivities of the witness, including bias and political agendas arising from

trends in academic circles, considerations of loyalty, human frailty and mere self-interest.

> The evidence of experts should be tested with regard to the use of accepted reliable

methodologies, and a witnesses’ readiness to address alternative propositions and willingness

to make concessions, before appropriately positive or negative inferences are drawn from

such evidence.

> Alternative forms of evidence and fact-finding available under the FCR and the Native Title Act

should be availed of if the circumstances of the expert evidence is creating material

complexities for the Court in drawing its own inferences.

Section 8 - Tactical burden and adverse inferencesThe evidentiary process in native title trials may, like other forms of litigation, give rise to the drawing

of adverse inferences in the circumstances set out in the “Rule in Jones v Dunkel,"'zgA and where the

other party fails to fulfil a “tactical, evidentiary or provisional burden” of producing evidence in

response to evidence led by the party that bears the onus of proof.1294 1295

The Rule in Jones v Dunkel provides that:

any inference favourable to the plaintiff for which there was ground in the evidence might be

more confidently drawn when a person presumably able to put the true complexion on the

facts relied upon as the ground for the inference has not been called as a witness by the

defendant and the evidence provides no sufficient explanation of his absence.1296

1294 (1959) 101 CLR 2981295 Ward v State of Western Australia (1996) 69 FCR 208 at 217; Moses Silver, ishmaei Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 at [23]; Ashwin and Others on behalf of the Wutha People v West Coast Geoscience Pty Ltd and Another [2014] NNTTA 88 at [14] - [15]1296 (1959) 101 CLR 298 at 308 per Kitto J and 312 per Menzies J; GvH (1994) 101 CLR 298 at [22]; Ho i/Porn?//(2001) 51 NSWLR 572 at [14]-[16]

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This rule:

> Applies where a party is “required to explain or contradict” something, or where evidence is

given of facts “requiring an answer.”1287

> Is “particularly appropriately drawn when the facts are peculiarly within the knowledge of the

silent party.”1297 1298

However, it “does not authorize the court to substitute suspicion for inference or to reverse the burden

of proof or to use intuition instead of ratiocination.”1299

A “tactical, evidentiary or provisional burden” arises in circumstances where the Court may draw an

inference in favour of the party who bears the onus of proof, and more readily accept the evidence of

that party, where:

> A party to litigation fails to accept an opportunity to place before the court evidence of facts

within his or her knowledge which, if they exist at all, would explain or contradict the evidence

against that party.”1300

> “A plaintiff calls evidence sufficiently weighty to entitle, but not compel, a reasonable trier of

fact to find in the plaintiff's favour” if the defendant does not call evidence of weight in

response.1301

This “is not just because uncontradicted evidence is easier or safer to accept than contradicted

evidence,” but rather “because doubts about the reliability of witnesses or about the inferences to be

drawn from the evidence may be more readily discounted in the absence of contradictory evidence

from a party who might be expected to give or call it.”1302

In addition to the matters generally applicable to considerations for these matters, there are some

specific considerations in relation to these matters in native title claims.

Party Relevant Considerations

The Crown The Crown may be 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.”1303

When considering the tactical burden of the Crown, regard should be had to

whether information might reasonably be assumed to be within the possession of

the Crown by virtue of:

1297 Heydon, op cit, at 41, drawing on the words of Windeyer J. in Jones y Dunkel (1959) 101 CLR 298 at 322 and as quoted with approval in Fonterra Brands (Australia) Pty Ltd v Viropoulos (No 3) [2015] FCA 1050 at [103]1298 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 639 per Fisher J1299 Insurance Commissioner v Joyce (1948) 77 CLR 39 at 61 per Dixon J1300 Weissensteiner v R (1993) 178 CLR 217 at [28] per Mason CJ, Deane and Dawson JJ1301 Strong v Woolworths Limited (2012) 246 CLR 182 at [53] and [60] per Heydon J1302 Ibid1303 Ward v State of Western Australia (1998) 159 ALR 483 at 504 per Lee J

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Party Relevant Considerations

> Its various roles and responsibilities carried out in relation to a claim area

over the relevant time,

> Its functions and practices in developing and maintaining records of matters

that occurred within its jurisdiction, and as the keeper of public archives.1304

These factors may be relevant to a Court’s willingness to more readily draw an

inference in favour of continuity where claimant evidence provides a foundation

for this through oral evidence, and the State does not produce archival evidence

to the contrary.

Members of the Native Title Claim Group

In relation to a claim group member who fail to testify or provide limited

testimony, adverse inferences may be drawn where the Court considers that

person’s views would likely have been of value in assessing relevant matters,

particularly where such persons are of sufficient importance to be a member of

the applicant.1305

Similar considerations may arise in relation to:

> A failure by any members of a generation of the claim group to give

evidence.1306

> Instances where only some members of a claim group can testify in relation

to specific aspects of the acknowledgement and observance of laws and

customs.1307

However, consideration should also be given to whether any cultural issues,

such as where a witness was concerned that his involvement in testimony ran

contrary to the requirements of traditional laws and customs1308 (or other matters

considered in Section 5), may explain such conduct, rather than the conduct

being because such testimony would not be helpful to the claimants’ case.

Section 9 - Disregarding prior extinguishmentIn relation to proof of occupation of an area at the relevant time necessary to support a finding to

disregard prior extinguishment under ss 47A or 47B of the Native Title Act, the Court need not be

1304 Burke v LFOT Pty Ltd (2002) 209 CLR 282 at [134] per Callinan J; Aboriginal and Torres Strait Islander Social Justice Commissioner, op cit1305 De Rose v State of South Australia [2002] FCA 1342 at [11] per O’Loughlin J1306 Ibid, at [15]1307 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [959] and [960] per Lindgren J1308 Narrier v State of Western Australia [2016] FCA 1519 at [223] per Mortimer J

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dissuaded from drawing inferences merely because these provisions have a significant effect.1309 In

the absence of direct evidence, there are a number of considerations the Court may have regard to


> The proximity of any claim group member’s residence to the area.1310

> The traditional way claim group members hunted and traversed the land around the area.1311

> Whether usage was traditional and likely to have occurred over a long period.1312

> Claim group members’ enthusiasm to range over the area.1313

1309 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [191] per Wilcox, French and Weinberg JJ1310 Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472 at [313] per Mansfield J1311 Ibid1312 Rubibi Community v State of Western Australia (No 7) [2006] FCA 459 per Merkel J1313 Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 at [301] per Rares J

213 | P a g e

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R v Merritt (1999) NSWCCA 29

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Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803

Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217; (1993) 117 ALR 545

Wik Peoples v State of Queensland [1996] HCA 40; (1996) 187 CLR 1; (1996) 141 ALR 129

Wilkes v State of Western Australia [2003] FCA 156

Wotton v State of Queensland (No 5) [2016] FCA 1457

Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229

Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; (2015) 235 FCR 464; (2015)324 ALR 454

Yankunytjatjara/Antakirinja Native Title Claim Group v State of South Australia [2006] FCA 1142

Yarmirr v Northern Territory of Australia (No 2) (1998) 82 FCR 533; (1998) 156 ALR 370

Legislation

Evidence Act 1906 (WA)

Evidence Act 1929 (SA)

Evidence Act 1977 (Old)

Evidence Act 1995 (Cth)

Evidence Act 1995 (No 25) (NSW)

Evidence Act 2001 (Tas)

Evidence Act 2008 (Vic)

Evidence Act 2011 (ACT)

Evidence (National Uniform Legislation) Act (NT)

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Native Title Act 1993 (Cth)

Native Title Amendment (Reform) Bill 2011 (Cth)

Native Title Amendment (Reform) Bill (No. 1) 2012 (Cth)

Native Title Amendments (Reform) Bill 2014 (Cth)

Native Title Amendment Bill 2011 (Cth) Explanatory Memorandum

220 [Page

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Attwood, B. Telling the Truth About Aboriginal History, Allen & Unwin, Crows Nest, 2005

Attwood, B. and J. Arnold (eds) Power, Knowledge and Aborigines, La Trobe University Press, Bundoora, 1992

Attwood, B., D. Chakrabarty and C. Lomnitz Public Culture, tlThe Public Life of History” volume 20 no. 1, Duke University Press, New York, 2008

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Journal articles

Attwood, B. "The Law of the Land or the Law of the Land' - History, Law and Narrative in a Settler Society" (2004) 2 History Compass 1

Attwood, B. “The Stolen Generations and genocide: Robert Manne’s In denial: the Stolen Generations and the Right” (2001) 25 Aboriginal History 153

Bartlett, R. “Humpies not houses, or, the denial of native title: a comparative assessment of Australia’s museum mentality,” (2003) 10 Australian Property Law Journal 1

Belgrave, M. “Looking Forward - Historians and the Waitangi Tribunal” (2006) 40(2) New Zealand Journal of History 230

Bennett, D. “The Cubillo and Gunner Cases” [November 2000] Quadrant 35

Black, M. “Developments in Practice and Procedure in Native Title Cases,” (March 2002) 13 Public Law Review 16

Blainey, G. “Native fiction” (April 2003) 21(8) The New Criterionhttp://www.newcriterion.com/archive/21/apr03/blainey.htm (accessed on 23 January 2008)

Brunton, R. “Genocide, the “Stolen Generations” and the “Unconceived Generations”” [May 1998] Quadrant 19

Byrne, J. “Indigenous Witnesses and the Native Title Act 1993 (Cth)” (June 2003) 2 National Native Title Tribunal Occasional Papers Series

Byrnes, G. “By Which Standards? History and the Waitangi Tribunal: A Reply” (2006) 40(2) New Zealand Journal of History 214

Carter, A. “The Definition and Discovery of Facts in Native Title: The Historian’s Contribution” [2008] FedLawRw 13 httD://www.austlii.edu.au/au/iournals/FedLawRw/2008/13.html (accessed 25 November 2017)

Case, N. “Tide of History or Tsunami? The Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors” (1999) 4(17) Indigenous Law Bulletin 17

Choo, C. and S. Hollbach, “The Role of the Historian in Native Title Litigation” (1999) 4(17)Indigenous Law Bulletin 7

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http://www.newcriterion.com/archive/21/apr03/blainey.htm

http://www.austlii.edu.au/au/iournals/FedLawRw/2008/13.html

Ciolek M. “Exploring Connection: Judicial Interpretation of Section 223(1 )(b) of the Native Title Act 1993 (Cth)” (2006) 10 Australian Indigenous Law Reporter 14

Clement, C. “Historians and Native Title: A Personal Perspective” (December 2000) 91 Australian Historical Association Bulletin 86

Clendinnen, I. “The History Question - Who Owns the Past?” (2006) 23 Quarterly Essay 1

de Graaff, B. “The Difference between Legal Proof and Historical Evidence. The Trial of Slobodan Milosevic and the Case of Srebrenica” (2006) 14(4) European Review 499

Douglas, L. “The Didactic Trial: Filtering History and Memory into the Courtroom” (2006) 14(4) European Review 513

Duff, N. “What’s needed to prove native title? Finding flexibility within the law on connection” (June 2014) 35 Australian Institute of Aboriginal and Torres Strait Islander Studies Research Discussion Paper

Eades, D. “Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications” (2008) 20(2) Current Issues in Criminal Justice 209http://www.austlii.edu.au/au/iournals/CICrimJust/2008/26.html (accessed on 13 November 2017)

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Internet

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Queensland Department of Natural Resources and Mines, Guidelines for preparing and assessing connection material for Native Title Claims in Queensland, November 2016,https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0003/108660/guide-preparing-assessing-connection-material.pdf (accessed 17 June 2018)

South Australian Crown Solicitor’s Office, Consent Determinations in South Australia: A Guide to Preparing Native Title Reports, 2004,https://www.lqa.sa.qov.au/webdata/resources/files/Consent Determinations in SA A Guide to Preparinq Native Title Reports.pdf (accessed 17 June 2018)

Western Australian Department of Premier and Cabinet, Guidelines for the Provision of Connection Material, February 2012, https://www.dpc.wa.qov.au/lantu/MediaPublications/Documents/Guidelines- for-the-provision-of-connection-material-Feb-2012-FINAL.pdf (accessed 17 June 2018)

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