The Western Australian Government challenged the claim, on the grounds that native title had been extinguished. The Federal Court trial began in February 1997. By analysing language. Stuart Rintoul is a specialist in Aboriginal history. Here is is to explain.
Native title is unique in Australian law and uniquely dependent on Aboriginal culture.
In the words of Justice Lee, and before him, Justice Brennan in the High Court's Mabo decision, native title exists except where there has been a 'clear and plain intention' on the part of the Crown to take it away, or else 'when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs. In this case, language itself was an important element in the success of the Miriuwung and Gajjerong people in establishing their native title. The Court spent considerable time looking at linguistic evidence and heard from Darwin linguist Frances Kofod. Ms Kofod's connection with the Miriuwung and Gajjerong dates back to 1971. In 1994-95, she worked with fluent speakers of Miriuwung to assist in translating a 'plain English' version of the Native Title Act into Miriuwung.