Case: Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457
Outcome: cited
applicants submit that it is well established as a matter of law that courts should infer the 'existence and content of traditional laws and customs, rights and interests, and connection with the claimed area, back to ... sovereignty'. I agree. In Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457 at [194] [202] Selway J referred to the common law authorities relating to the proof of customs since time immemorial. However, the shorter the period that has to be covered by an inference of retrospective continuance, the better. In the present case, the acknowledgment and observance of pre-sovereignty laws and customs may have been affected by events since European settlement in, say, the early 1890s: including the migration from the desert to the towns and settlements of the Goldfield; the abandonment of the nomadic life in the desert; and the dominance of the non-Aboriginal culture. The point is that where, as here, the task is to ascertain what the pre-sovereignty body of laws and customs was, I prefer to look first for the earliest available evidence of laws and customs as they existed after first contact. Admittedly, in some cases, the earliest available record may have been made long after first contact. The proper drawing of inferences depends on the application of logic and human experience to the facts that are proved by admissible evidence. Upon analysis, I am asked to draw two inferences here: 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). The inference of attribution is discussed below at 3.6(c)(5) [948] ff. Wigmore on Evidence , 3rd ed, vol 2, [437], describes the inference of retrospective continuance : the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at the later period . degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is in issue and the particular circumstances affecting it in the case in hand. That a soap-bubble was in existence half-an-hour ago affords no inference at all that it is in existence now; that Mt. Everest was in existence ten years ago is strong evidence that it exists yet; whether the fact of a tree's existence a year ago will indicate its continued existence today will vary according to the nature of the tree and the conditions of life in the region. So far, then, as the interval of time is concerned, no fixed rule can be laid down; the nature of the thing and the circumstances of the particular case must control. considerations affect the use of subsequent existence as evidence of existence at the time in issue. Here the disturbing contingency is that some circumstance operating in the interval may have been the source of the subsequent existence, and the propriety of the inference will depend on the likelihood of such intervening circumstances having occurred and been the true origin. On landing at New York it can hardly be inferred that the steamer at the next dock has been there for a week; but it may usually be inferred that the dock has been there for some years; while the particular circumstances of appearance and the like will in the latter instance affect the length of time to which the inference could be carried back. Here, as with prior indications, the interval of time to which the inference will be allowable must depend upon the nature of the thing and the circumstances of the particular case. opponent ... may always attempt to explain away the effect of the evidence by showing that in the meantime other circumstances have occurred to raise a probability of change instead of continuance.' In Harrington-Smith v Western Australia (No 7) at [10], I referred to the distinction between expert opinion evidence, expert non-opinion evidence, non-expert opinion evidence, and (implicitly) non-expert non-opinion evidence. I noted that the various experts' reports were tendered only as expert opinion evidence. I also remarked ([40]-[42]) on the difficulty of applying the concept of 'opinion' to much of the reports of the two historians, which consisted of analysis, synthesis and summary of factual material. This is not to say that an expert may not present, in an organised and more readily accessible form, a haphazard collection of factual data: Potts v Miller [1940] HCA 43 ; (1940) 64 CLR 282 at 301-305 (Dixon J); Spassked Pty Ltd v Federal Commissioner of Taxation (No 2) (2002) 49 ATR 642 at [13]-[14] (Lindgren J); Australian Securities and Investments Commission v Rich [2005] NSWSC 149 ; (2005) 53 ACSR 110 at [297] (Austin J); Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [27]-[31] (Sackville J); Gumana v Northern Territory at [156] (Selway J). It is, however, necessary that the primary materials be in evidence, unless the parties agree (and the Court accepts) that the expert's statement of their effect is to be admitted into evidence without them. The distinction between such a statement and expert opinion can be a difficult one: (' Harrington-Smith v Western Australia (No 7) ') at [40]. Group 6A notes that the NK witnesses were 'aware of the existence and operation of a skin and kinship system', and could identify their own skin and that of some family members. Dolly Walker said that she had not been told a story for how her people got the skin system, but stated what she understood the rules relating to correct skin marriages to be: woman karimarra marry purungu or yiparrka . Two ways they can marry yiparrka man, purungu man for the karimarra karimarra can marry, and karimarra can marry yiparrka too if they want to. And milangka milangka and tharuru they marry panaka . That's that's all the way. Right way milangka milangka right way for for panaka , milangka and tharuru for panaka .' Ms Walker said that her marriage to her first husband, the Tjupan man, Keith Narrier, was wrong way, because they were both karimarra . She said that she was given away by a man called Tony Green, and that both she and Mr Narrier were too young to know about skin systems at the time. She said she was about 16 years old. She said that they did not get into trouble, probably because they were living on a station, not in a camp. Ms Walker's second husband, Peter Muir, is a non-Aboriginal man (he has been fully initiated, and according to the Ngalia Family document, he is Purungu , which Dolly Walker said was right way for karimarra ). Group 6A submits that the evidence of the NK witnesses provides only one instance of a right-way marriage Talbot Muir's marriage to his present giveaway wife, Maurveen Harris, the daughter of Cecily Harris. Talbot Muir's first wife, Janelle, was from Cue. Kado Muir's wife is a Tamil woman. There is no evidence as to whether Paddy Walker's marriage was right-way or wrong way, although, according to the Ngalia Family document, she was yiparrka which Dolly Walker testified was also right way for a karimarra . Zabar Muir is married to a woman from New Zealand.