Case: Daniel v State of Western Australia [2003] FCA 666
Outcome: considered
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. In Daniel v State of Western Australia [2003] FCA 666 ( Daniel ) at [149], Nicholson J said that it must always be borne in mind that any historical record about Aboriginal people is incomplete. There are 'silences' in the historical record. His Honour said that '[t]he nature of these 'silences' and the manner in which they should be addressed is the subject not merely of academic interest, but one that 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.' Nicholson J said that this was particularly so in Daniel , where the records of 'police and pastoralists' were 'ethnocentric' and where there was a 'lack of continuity of anthropological observation of the customs, practices and lifestyles of Aboriginal people, and Europeans generally, including police, pastoralists and Native Welfare officers, did not identify people by tribe or language.' 136 Dr Wells in cross-examination referred to the issue of silences in the historical record, saying, 'indigenous history has ...changed markedly since the 1970s and prior to that, history was sort of written as, you know, white fellas came and did this to Aborigines. There was not much said [about] ... the Aborigines responding or having a part in that process, and so over the last 30 years historians have tried to understand the part of Aborigines in that process and understand that they were making informed choices and decisions about ... how they would react to different aspects of colonisation.' 137 In the light of the cross-examination, I have come to the view that Dr Wells to a degree adopted a view of historical records which was favourable to the Larrakia claimants. That is not because she was in fact partisan, or was not trying to assist the Court. It was appropriate for her to assess the significance of elements of the historical record. I accept, with respect, what fell from Nicholson J in Daniel . Those observations are equally apt here. But the cross-examination exposed a number of instances where the historical record was not silent, and where Dr Wells had taken a view as to its significance which appeared not to be justified by its terms or on occasions which appeared to be inconsistent with its terms. An historian may well regard such an approach as sensible, and as fitting in with a more general thesis supported by other material. All evidence, whether historical or contemporary, is sought to be understood in its context including the context of its author or speaker. However, in this instance, the primary sources which Dr Wells sought to interpret or read 'against the grain' were many in number and in a number of instances the reasons for doing so were not persuasive to me. As the respondents submitted, that material on its face was also consistent with (and in some cases indicative of) the alternative thesis that during the middle part of the 1900s the Larrakia people were not consistently as coherent a society as Dr Wells said the record intended to show. I think that alternative thesis in respect of that period was not as fully considered by Dr Wells as it might have been.