Case: Yarmirr v Northern Territory (1998) 82 FCR 533
Outcome: discussed
The Commonwealth also accepts that the evidence of the Aboriginal witnesses provides the most important evidence in a native title case. It points out that trial Judges dealing with native title claims in this Court have consistently stated that what really matters in such cases is the evidence of the Aboriginal claimants: Yarmirr v Northern Territory (1998) 82 FCR 533 (' Yarmirr' ), at 562, per Olney J; De Rose(FCA) , at [342], [351], per O'Loughlin J. 289 The Commonwealth submits that there are inconsistencies between the evidence of Aboriginal witnesses and the expert evidence given by Professor Sutton and Ms Vaarzon- Morel. Both experts describe the information provided to them by Aboriginal people (many of whom were witnesses in the proceedings) as 'folk models' that can be at odds with the actual behaviour of people. In the words of Professor Sutton: 'The old rules persist in the minds of older people and may be stated in a simple or conservative form that does not describe at all richly the various solutions younger people have been reaching in practice.' 290 The Commonwealth further submits that expert anthropological evidence, even if unchallenged, cannot overcome significant gaps in the evidence given by indigenous witnesses. Thus in Yarmirr at first instance, Olney J declined to accept a claim that the Aboriginal applicants, by their traditional laws and customs, enjoyed exclusive possession, occupation and enjoyment of the waters of the claimed area, notwithstanding that the claim had been supported by the virtually unchallenged anthropological evidence: Yarmirr , at 563, 585. In the light of these authorities, the Commonwealth submits that the evidence of Professor Sutton and Ms Vaarzon-Morel cannot be used to rectify deficiencies in the evidence of the Aboriginal witnesses. 291 It is plainly correct that expert anthropological evidence is unlikely to cure certain kinds of gaps or deficiencies in evidence adduced from Aboriginal witnesses. If, for example, indigenous witnesses consistently disclaim a suggestion that their traditional laws and customs allow interests in country to be acquired in a particular manner, evidence to the contrary by an anthropologist is unlikely to carry a great deal of weight. This will be so even if the anthropologist's evidence is not directly challenged in cross-examination, since evidence from indigenous witnesses is normally regarded as providing the most reliable account of traditional laws and customs of the relevant people. 292 Depending upon the circumstances, however, anthropological evidence might well supplement the testimony of indigenous witnesses and, in that sense, fill in some evidentiary gaps. In the present case, for example, the applicants submit, with some force, that most of the Aboriginal witnesses experienced difficulty in providing full and coherent accounts of their customary practices in relation to country. This was by no means because they lacked knowledge or understanding of those practices. Rather, it reflected the fact that they were not accustomed to expressing the underlying concepts in a manner suited to a courtroom (even a 'courtroom' conducted on-country). The barriers to effective communication were compounded by the difficulty of translating questions and answers relating to those concepts to and from the dialects of the Western Desert. 293 In these circumstances, the anthropological evidence, if otherwise reliable, might assist in explaining the nature of the practices adopted in relation to country and the people who acknowledge and observe similar practices. An example concerns the evidence given by the Aboriginal witnesses as to the people who acknowledge and observe laws and customs similar to their own. Perhaps not surprisingly, most witnesses who were asked to address this topic had difficulty in identifying what the anthropologists described as the people of the Western Desert or of the eastern Western Desert. (An exception was Peter Wilson, a younger man educated at State schools who gave his evidence in English. He gave evidence of the extent of the Pitjantjatjara and Yankunytjatjara lands, the people of which share ceremonies and the Tjukurrpa stories.) Anthropological evidence might assist in completing the picture left unfinished by the Aboriginal witnesses, or at least enable the Court better to understand the extent to which laws and customs are shared by people identifying with different tracts of country. 294 The applicants submit that in assessing the evidence of the Aboriginal witnesses, account should be taken of the cultural barriers to effective communication in a courtroom setting. I accept that there are such barriers and that they must be given due consideration. They include the obvious difficulties of translating observations about traditional customs and practices from Pitjantjatjara and Yankunytjatjara into English and vice versa (notwithstanding the conscientious efforts of the skilled interpreters); the unwillingness of some witnesses, particularly the older people, to speak about certain sensitive topics; a tendency for the witnesses to give what non-indigenous observers might regard as incomplete answers to questions (particularly to the non-leading questions that are ordinarily required in examination-in-chief); and, on occasion, a refusal for no apparent reason to respond when pressed for answers to particular questions. The barriers to communication in the present case were compounded by the physical infirmities endured by some witnesses who, clearly enough, found it a strain to concentrate and answer questions, even for relatively short periods. 295 An example of the difficulty of communication occurred when Ms Kelly, for the Territory, asked Reggie Uluru an apparently simple question in cross-examination. Mr Uluru provided what appeared to be an unresponsive answer: 'MS KELLY: Is there a law, an Arnangu law, that says how a person becomes ngurraritja for a country? THE INTERPRETER [Discussion in language] Yes. MS KELLY: Can you tell us what that law is? THE INTERPRETER: [Discussion in language] When the people stay with the people in the area, the local area, then that person [Discussion in language] when the people might pass away from the local group here, pass away and I might go, go away and come back and visit and find that person is no longer here. MS KELLY: It doesn't appear that I can take that any further your Honour'. I did not attribute Mr Uluru's apparent unresponsiveness, at the time his evidence was given, to his unwillingness to co-operate with the questioner. Rather, I thought that the answer reflected his imperfect understanding of the question asked or, perhaps, a difficulty in translating his response adequately. 296 The contrast between the demeanour of witnesses when testifying in the courtroom and when giving evidence more informally on-country was sometimes striking. Nellie Armunta, for example, appeared uncomfortable in the courtroom and required frequent breaks. Her state of health was not good and giving evidence in that setting was clearly a strain for her. Yet when Armunta joined the entourage on-country at places such as Mantarurr (her father's country) and Katartitja, she showed remarkable energy and stamina for an elderly person whose health was clearly fragile. At one point during the site visit to Mantarurr, which involved some exertion in warm conditions, Armunta volunteered this comment: 'I can't see too well but ... I'm really happy today'. 365 Since the Commonwealth's submissions rely heavily upon Yorta Yorta (HC) , it is worth observing that the facts of that case were very different from those of the present case. Factual findings were made by the trial Judge in that case (see Yorta Yorta (HC) , at [95]) to the effect: 'that the society which had once observed traditional laws and customs had ceased to do so and, by ceasing to do so, no longer constituted the society out of which the traditional laws and customs sprang'. The trial Judge found that the traditional way of life of the indigenous people had been suppressed and that, as a consequence, their observance of traditional practices had disintegrated. There was also positive evidence, emanating from the Aboriginal people themselves, to the same effect. This included a petition by Aboriginal people in 1881 to the Governor of New South Wales, which lamented the fact that all land within tribal boundaries had been taken by the Government and white settlers. The petitioners expressed a desire to change their 'old mode of life' in favour of 'settling down to more orderly habits of industry': Yorta Yorta , at [117]-[120], per Olney J. No comparable evidence has been adduced in the present case. 366 I emphasise that the conclusion I have reached does not determine the separate question of whether the applicants have shown that the members of the compensation claim group acknowledged and observed the laws and customs relating to native title rights and interests pleaded in the Points of Claim. Nor does it determine whether the pleaded laws and customs are the traditional laws and customs of the Western Desert bloc. These issues require separate consideration (section 17 , below). 367 Before I can conclude that the Western Desert bloc continued as a society until at least the time of the compensation acts, it is necessary to consider the effect of migratory patterns within the Western Desert. The evidence in the present case suggests that population movements in the Western Desert occurred well before European settlement. Professor A P Elkin, for example, observed in his 1939 study of 'Kinship in South Australia' that: '[t]he Aborigines of western South Australia have been in a continuous state of migration southwards for some decades; a movement which I believe was in progress before the coming of the white man'. (1939) 10 Oceania 196, at 203. In the same study, Professor Elkin noted that the major population movement had been from the Musgrave and Everard Ranges to the south, but seldom to the north 'until in quite recent decades': 'Under pressure of droughts and at best constant desert conditions the groups pressed towards the south, seldom if ever to return, lengthening the mythological tracks and cutting themselves off from the spread of new forms and social and kinship organization and terminology'. (1940) 10 Oceania 295, at 305. 368 These observations are consistent with Professor Sutton's own opinion, recorded in his published works, that the Western Desert is the region of Australia that seems to have experienced the greatest demographic instability at the time of colonisation. He attributes this state of affairs to the ecological uncertainty that people faced, before the water bores were introduced and imported food became available. Professor Sutton also accepts that 'incursive movements' to the east and southeast of the Western Desert occurred during the earliest colonial phase: P M Sutton, Native Title in Australia: An Ethnographic Perspective (2003), at 143. 369 In 1930, Elkin conducted a ten month study of 'The Social Organization of South Australian Tribes'. For most of that period he was based at Oodnadatta, which is a considerable distance south of Uluru, although it appears that he ventured as far north as Ernabella. Elkin reported that he had seen 'natives in this region ... living in a totally uncivilised manner'. He noted that these people had experienced 'a specially hard time during the past ten years on account of a severe drought' and that as a result migration into the areas of white settlement had increased. Further investigations east, west and south (but not north) had shown that: 'the depopulation of this region is very far advanced, and that the causes are on the one hand, the low rainfall and poverty of the country, and, on the other hand, the comparative attractiveness of life in proximity to white settlement'. (1931) 2 Oceania 44 , at 46. Professor Elkin also noted that his investigations around Ooldea (on the southern fringes of the Western Desert) suggested that Aboriginal people had travelled there from the direction of the Everard Ranges. 567 In De Rose (FCA) , O'Loughlin J rejected (at [553]) a submission that the grant of a pastoral lease by the Crown necessarily extinguishes any native title right to control access to the land or to decide how the land is to be used. His Honour concluded that although the rights and obligations contained in pastoral leases gave superior rights to the lessee with respect to matters of access and use, that did not mean that all native title rights of access and control were necessarily extinguished. His Honour acknowledged the comment made by the majority in Ward (HC) , at [417] that: 'the grants of the respective pastoral leases were inconsistent with the continued existence of the native title right to control access to and make decisions about the land'. However, he took that observation: 'to constitute a statement of the position between the native title claimants on the one hand and the pastoralist on the other. I do not see that it necessarily takes away the residual rights of control of access and use as between the holders of native title themselves and any other Aboriginal people who seek access or use of the claim area in accordance with the traditional laws and customs'. 568 An appeal from O'Loughlin J's judgment was allowed, but no challenge was made to his Honour's ruling on this point. The native title determination ultimately made in De Rose (FC) (No 2) (at [171]) included a native title right to: 'make decisions about the use and enjoyment of the determination area by Aboriginal people who recognise themselves to be governed by the traditional laws and customs acknowledged by Nguraritja [traditional owners] ' (par 3(l)). The determination also acknowledged a native title right to maintain and protect sites and places on the determination area of significance to nguraritja (to use the spelling adopted in De Rose (FC) (No 2) ) under their traditional laws and customs (par 3(j)). Both native title rights were expressed to be subject to the rights and interests granted by the pastoral leases. The latter prevailed over the native title rights and interests, but did not extinguish them (par 10). 569 Paragraph 3(l) of the determination made in De Rose (FC) (No 2) follows closely the corresponding provision in par 5(e) of the determination made in Ward (FC) (No 2) . At one point in the present case, the Commonwealth seemed to suggest that par 5(e) of the determination in Ward (FC) (No 2) had been made by consent and therefore had no value as a precedent. However, the Full Court in that case specifically said this (at [27]): 'The argument is that the right to make decisions about the use and enjoyment of the area cannot be recognised because the right to control access was extinguished by the grant of the pastoral leases. However, there is a clear distinction between a right to control access, generally and as a matter of law, and a right to make decisions about the use and enjoyment of land by Aboriginal people who will recognise those decisions and observe them pursuant to their traditional laws and customs. The continued existence of the former right is incompatible with a pastoral lease entitling the pastoral lessee to determine who has access to the land; the latter is not. We think subcl (e) should remain'. It was presumably this paragraph in the judgment that prompted the Commonwealth to submit formally that Ward (FC) (No 2) had been incorrectly decided.