Kerruish, Valerie; Perrin, Colin --- "Awash in Colonialism" [1999] AltLawJl 1; (1999) 24(1) Alternative Law Journal 3

The evidence does not support a finding that the descendants of the original inhabitants of the claimed land have occupied the land in the relevant sense since 1788 nor that they have continued to observe and acknowledge throughout that period, the traditional laws and customs in relation to land of their forebears. [at 129][5]

Trial of the claim concluded prior to the passage of the 1998 amendments to the Native Title Act 1993, but the determination was subsequent to them. While Olney J made specific references to the legislation,[6] he authorises his statement of the legal principles governing the determination with reference to Mabo (No. 2). From this citation of authority, the bracket that encloses Olney J’s judgment is Brennan J’s metaphor of ‘the tide of history’.

... when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has ceased ...[7]

This passage is quoted at the beginning of the judgment (at 66) and repeated twice at the end (at 126 and 129). It is Olney J’s justification for finding the claimants, in Jeannine Purdy’s phrase, were not ‘native’ but ‘nobody’.[8]

The metaphor of the tide of history conveys the legal meaning of the colonisation of Australia. Colonisation is in the past: a natural and inevitable force. The law of native title, on the other hand, is in a present that, while absolved from any responsibility for that which has been washed away, acknowledges the possibility of survival. A native title claim, Olney J says:

is not about righting the wrongs of the past, rather it has a very narrow focus directed to determining whether native title rights and interests in relation to land enjoyed by the original inhabitants of the area in question have survived to be recognised and enforced under the contemporary law of Australia. [at 21]

Again, he does not baulk at recording his irritation at this expectation: at the fact that the applicants, in his view, wanted of him ‘social engineering’, ‘political correctness’, even ‘righting the wrongs of past centuries’ (at 17); and, moreover, that they subjected him to ‘frequent, and in some instances, prolonged, outbursts of what can only be regarded as righteous indignation ... at the treatment, they, and their forebears, have suffered at the hands of the ... authorities’ (at 21).

But where or how, in or after Mabo (No. 2), does the celebrated ‘retreat from injustice’ so narrow its focus as to lose that character?

On credibility

Codification, both as the determination of a ratio decidendi of the case and in the native title legislation, is of doubtless relevance. Yet Brennan J clearly thought that native title should survive only exceptionally; more exceptionally, as it turned out than the majority of the High Court that formed itself around the Wik decision.[9] In both cases, Brennan J is keen to ensure that survival is kept distinct from revival:

A native title that has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition’.[10]

It is Brennan J’s invocation of ‘the tide of history’ that sustains this distinction; concealing the operation of a norm of extinguishment which, applied to the Yorta Yorta, facilitates Olney J’s determination that they lack ‘any real acknowledgment of traditional law and any real observance of traditional customs’.[11] What is implicit here is the benchmark of an authenticity according to which the Yorta Yorta are found to be the product of revival, rather than survival.

Olney J has this dubious authority from the High Court and the incumbency of judicial office to support the arrogation of power to enforce this distinction between revival and survival, but such an obnoxious power is constrained. His decision is to be made on the basis of the evidence, and according to law.

Olney J takes the suspension of technicalities, legal forms and rules of evidence, expressed in s.82(3) of the (unamended) Native Title Act, as his explicit modus operandi. He does so in a context where this suspension is held to be necessary because, as he says, there is an ‘absence of direct evidence of the indigenous occupation of the claim area in 1788’ (at 25). Having dispensed with the anthropological evidence — both because of its ‘speculative’ character (at 54) and the admission of the applicants’ anthropologist to ‘perhaps a degree of partisanship on his part’ (at 55) — and despite the fact that ‘for the most part the only record of events is oral tradition’ (at 24), he finds its credibility as a record wanting:

The oral testimony of the witnesses from the claimant group is a further source of evidence but being based upon oral tradition passed down through many generations extending over a period in excess of two hundred years, less weight should be accorded to it. [at 106]

What he is left with as ‘the most credible source of information concerning the traditional laws and customs of the area’ is the written ‘observations’ of Edward M. Curr, a pastoralist: ‘he clearly established a degree of rapport with the local Aboriginal people and subsequently published two valuable works dealing with his experiences’ (at 53). ‘His record of his own observations should’, Olney J adds, ‘be accorded considerable weight’ (at 106).

Relying on Curr, Olney J’s judgment describes a singular colonial narrative in which the Yorta Yorta are admitted only to evidence their historical demise, and so to present their lack of authenticity. His judgment turns upon this narrative — what he calls the ‘whole context’ of the case — from, and with reference to, which the testimony of the Yorta Yorta themselves is largely excluded (at 22). Olney J compiles a history of the fragile, if not fickle, character of Aboriginal tradition according to which he concludes:

It is clear that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession of their tribal lands and had, by force of the circumstances in which they found themselves, ceased to observe those laws and customs which might otherwise have provided a basis for the present native title claim; and the dispossession of the original inhabitants and their descendants has continued through to the present time. [at 121]

Olney J is no doubt correct to have regard ‘only to evidence that is relevant, probative and cogent’ (at 17), but suspension of the law of evidence emancipates the meaning (within legal discourse) of ‘probative’, vesting a wider discretion in the trial judge. The question here concerns Olney J’s exercise of that discretion.

In his assessment of the evidence, Olney J suggests, on more than one occasion, that the particular oral evidence given in this case was weak. Acknowledging the ‘in some respects both credible and compelling’ nature of the evidence given by ‘many of the applicants’ witnesses’ — ‘particularly’, Olney J tells us, ‘the more senior members of the applicant group’ — he continues:

Regrettably, this was not always so. In one instance two senior members of the claimant group were caught out telling deliberate lies, albeit about a relatively minor matter, but nevertheless incidents of that nature tend to cast a shadow over the other evidence of those witnesses. [at 21]

He returns to the point towards the end of his reasons. In the context of ‘making some mention of the evidence concerning the current beliefs and practices of the group’ — despite having already found such beliefs and practices ‘genuine efforts ... to revive the lost culture of their ancestors’ (at 121) — Olney J says:

I do not regard Mr Walker as a reliable witness but rather as one prone to avoid direct answers to straightforward questions. He is one of the witnesses whose credit is called into question in relation to an incident referred to in paragraph 21. [at 127]

‘Evidence based on oral tradition’, Olney J further comments:

passed down from generation to generation does not gain in strength or credit through embellishment by the recipients of the tradition and for this reason much of the testimony of several of the more articulate younger witnesses has not assisted the applicants’ case. [at 14]

Apart from the reference here to a stereotypical inarticulacy, the inference is that the credibility of evidence based on oral tradition lies in the extent to which it passes unchanged, from generation to generation. We may just note that this,[12] as well as the reason Olney J gives for his assessment of Mr Walker’s credibility[13] so flies in the face of well-known research done on Aboriginal communication, as to be astounding. But that does not explain the absurdity of attacking the credibility of witnesses, the cogency of whose evidence Olney J has already said:

does not necessarily depend upon the credibility of the individual witnesses but must be assessed in the whole context of the case including, where it exists, evidence derived from historical records and the recorded observations of people who witnessed activities and events about which the members of the claimant group know only what has been passed down to them by their forbears. [at 22]

What then to make of Olney J’s inclusion of the above incidents in his reasons when, on his own account, they are not reasons at all?

The significance of the ‘lies’ resides not so much in the exceptional instance of their telling but rather in the exceptional instance that those who told them were ‘caught out’. As the possibility is raised that other lies may have been told, the point goes to the general problem which Olney J has with the credibility of oral testimony. His invocation of the ‘whole context’ indicates this testimony is opposed to ‘history’. Olney J’s concern is with a truth that is here located in the written record — as direct and impersonal — rather than in an oral tradition according to which members of the claimant group know ‘only’ what has been passed down to them — indirectly and personally — by their forebears.

What Olney J is recounting are exemplary instances in support of his general devaluation of oral testimony. He is not providing the particular reasons why he has accorded less weight to the oral evidence given by the Yorta Yorta. It is, therefore, in his prior disregard for the credibility of oral testimony that Olney J seems less to have judged, than to have prejudged, this evidence.[14]

Olney pays no attention to the weight given to oral testimony elsewhere.[15] Lamer CJ, for example, in Delgamuukw, speaks exactly to Olney’s concerns. Noting:

Many features of oral histories would count against both their admissibility and their weight as evidence of prior events in a court that took a traditional approach to the rule of evidence ...

he adds:

Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.

Following this he invokes Dickson, CJ:[16]

given that most aboriginal societies ‘did not keep written records’, the failure to do so would ‘impose an impossible burden of proof’ on aboriginal peoples and ‘render nugatory’ any rights that they have’.[17]

Despite the common law’s assertion of a supreme jurisdiction which compromises the crosscultural understanding required of a just determination in a native title claim, it is not compromised to the extent that Olney J can exercise a discretion which rejects the relevance of such an understanding altogether. For on such a basis, there would be no other evidence than that of colonialism.

It is because Olney J maintains the ‘sympathetic‘ Curr (notwithstanding the fact that ‘even [he], who generally enjoyed a good relationship with the indigenous people ... had his shepherds attacked and sheep driven off’ (at 34)) to be the most objective and credible source of information about the laws and customs of the Yorta Yorta that colonialism does become the ‘whole context’ for Olney J’s judgment. Curr, he adds, ‘at least observed an Aboriginal society that had not yet disintegrated’ (at 101).

This disposition towards disintegration recurs throughout Olney J’s assertion of a context which draws on two books written by Curr[18] as well as the ‘records’ kept by mission owner Daniel Matthews (at 63). Matthews, for example, ‘records’:

These tribes in early days were probably large, numbering several hundreds; but owing to the march of civilisation, acquired estates, incursions and reprisals, they gradually became decimated until now, they are mere fragments of tribes, occupying an industrial village of about 22 residents and 1,800 acres of land that I obtained for their use in 1882 from the New South Wales Government. [at 63]

Invoking, though he offers no particular reason for its inclusion, a similar tendency towards their acquiescence to the march of civilisation (the tide of history), Olney J also relays one of Curr’s amusing ways of pretending civility:

I offered him on the spot, with the most serious face, a stick of tobacco for the fee simple of his patrimonial property which, after a short consultation with his elders, was accepted and paid. [at 111]

Elsewhere, Olney J again anticipates his findings as he notes that by the 1880s:

The older people, born before the arrival of whites and who had survived the period of conflict immediately after white occupation, were dying out. [at 40]

All of this, then, establishes the supposed context for the two aspects of Olney J’s determination: first, the ‘dispossession’ of the Yorta Yorta by 1881 and, second, its continuation ‘through to the present time’.

On reading

Olney J’s determination in this first respect devolves upon his extraordinary use of a petition ‘signed in 1881 by 42 Aboriginals’.[19] The petition was rendered by the applicants as ‘evidence of one of what were said to be 12 significant attempts by the Yorta Yorta people to assert proprietary interests in their land’ (at 119). Olney J in a ‘reading’ that is a tour de force of distortion, puts it to a rather different purpose. The petition, he says:

contains a frank acknowledgment that ‘all land within (the petitioners’) tribal boundaries has been taken possession of by the government and white settlers’ and the expression, on the part of the petitioners, of their desire to change ‘our old mode of life’ in favour of ‘settling down to more orderly habits of industry’. [at 120]

Several points: there is, Olney J says, ‘no doubt that Matthews would have played a part in [its] composition’ (at 121). He has apparently forgotten that he has already cited Matthews’ own claim that he obtained what seems more than likely to have been this land from the New South Wales Government (at 63 — see above). Then Olney J observes that the petitioners ‘are described as members of the Moira and Ulupna tribes, a description ... which suggests that the individuals concerned identified with the two main pastoral properties in the region rather than as Bangerang or any of the other sub-groups referred to by Curr’ (at 120).[20] He does not admit the possibility that this identification might imply, as do all of the classical colonial references employed in the petition (‘natives’, ‘fellow natives in other colonies’, ‘settle down’, ‘orderly habits of industry’, etc.), that Matthews may have played a rather larger part in its composition than Olney J suggests.

Two further points which go to Olney J’s own concerns: first, the apparent petitioners include only some of the children of those two ancestors to whom descent has been traced to Olney J’s satisfaction (he has already found insufficient evidence to support descendancy through others (at 88-104)); second, the ‘admission’ contained in the petition is only that ‘our means of subsistence [has been] rendered extremely precarious’. In neither case does the petition fully support his conclusion that ‘those through whom the claimant group now seeks to establish native title ... had ... ceased to observe those laws and customs based on tradition’ (at 121).

Why does Olney J ignore the petition as a strategy of resistance and maintain a ‘literal’ reading which misses the fact that it would inevitably have been rendered in terms that are apt to succeed?[21]

One can only discern that his reading takes place in a context already determined: by Curr’s ‘observations’ as to the readiness of the Yorta Yorta to relinquish their land, as well as his claim as to the flimsiness of their political organisation. ‘Amongst the Bangerang there was not, as far as could be observed, anything resembling government’ (at 112). Thus it makes sense to Olney J as ‘positive evidence emanating from the Aboriginals themselves to the same effect’ as that of the ‘absence of evidence of continued observance of traditional laws and customs’ (at 119).

Whilst Olney J uses the standard legal phrase in the paragraph cited, the meaning he assigns to that phrase is found in the previous paragraph.

The evidence is silent concerning the continued observance [from circa 1870] ... of those aspects of traditional lifestyle to which reference is made in the passages quoted from Curr. [at 118]

To move on to the second aspect of Olney J’s determination, namely: ‘[t]he dispossession of the original inhabitants and their descendants has continued through to the present time’, his finding is that:

No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. [at 121]

For Olney J, there is no difference between ‘those aspects of traditional lifestyle to which reference is made in ... Curr’ and occupation ‘in the sense that the original inhabitants ... occupied’. He reads this sense in Curr and, to it — in a final confirmation of revivalism — he compares the evidence given by the Yorta Yorta as to their current practices.

The Yorta Yorta regard as sacred or significant sites such as shell middens, oven mounds and scarred trees where, Olney J says, ‘there is no evidence to suggest that they were of any significance to the original inhabitants’ (at 122). Similarly, he considers the practices associated with the returning of remains from Melbourne (where they were removed for scientific examination) to ‘the appropriate country’ as ‘not part of the traditional laws and customs handed down from the original inhabitants’ (at 124). And, finally in this respect, Olney J considers the ‘extensive involvement’ of the Yorta Yorta people in activities associated with the conservation of the timber and water resources in the area’ and concludes: ‘these are issues of relatively recent origin about which the original inhabitants could have no concern and which cannot be regarded as matters relating to the observance of traditional laws and customs’ (at 125).

If we ask why these matters cannot be so regarded, Olney J’s use of a passage cited earlier from Curr provides the answer:

If anything was left for Tuesday, it was merely that they had been unable to consume it on Monday. In this they were like beasts of the forest. Today they would feast — aye gorge — no matter about the morrow. So also they never spared a young animal with a view to its growing bigger. [at 115]

This, he compares to the evidence given:

It is said by a number of witnesses that consistent with traditional laws and customs it is their practice to take from the land and waters only such food as is necessary for immediate consumption. [at 123]

And finds:

This practice, commendable as it is, is not one which, according to Curr’s observations, was adopted by the Aboriginal people with whom he came into contact and cannot be regarded as the continuation of a traditional custom. [at 123]

We will just note Olney J’s contextual predisposition to read here a lack of continuity between ‘wastefulness’ and ‘conservation’ rather than the continuity of ‘immediate consumption’ and move on to Olney J’s reading of the demand for continuity in native title law. As is evident in his determination based on the petition, as well as his subjection of the Yorta Yorta’s present sense of occupancy to Curr’s ‘observations’ as to its original sense, it is on this reading that Olney J’s judgment hangs.

On continuity

We begin by noting a formal discrepancy between Olney J’s statement of the legal requirements of native title and his statement of reasons for the failure of the application. Aside from the requirement to prove descent from an ancestor group ‘who occupied (in the relevant sense) the claim area prior to the assertion of sovereignty’, the claimants are, Olney J says, required to prove the ‘substantial’ maintenance of a ‘traditional connexion with the land since the assertion of sovereignty’ (at 4). While, with respect to the first requirement, he finds that (some of) the claimants are descendants of the original inhabitants, with respect to the second, his finding is that they have not ‘occupied the land in the relevant sense since 1788’ and that they have not continued to acknowledge and observe ‘the traditional laws and customs in relation to land of their forebears’ (at 129).

Olney J has taken the requirement of occupancy (in the relevant sense) stated as pertaining to the time ‘prior to the assertion of sovereignty’ and applied it to the time ‘since 1788’. He has taken a requirement which is stated as pertaining to the ancestor group and applied it to the claimants. In doing so, he has drawn on Brennan J’s formulation in Mabo (No. 2) of the requirement to prove continuity:

Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence.[22]

but to it he has added a requirement, drawn from Toohey J’s judgment, also in Mabo (No. 2), for ‘[t]he need to establish occupancy as an essential element in a claim to traditional title’ (at 3). Apart from the fact that this burden of proof does not constitute the legal requirement as Olney J states it, it is not a defensible reading of authority.

If Olney J has doubled the burden of proof resting on the applicants then he has made a clear and substantial error of law. But is this what he has done? Or, in some excess of dismissiveness of the applicants’ claim, has he merely repeated, in different formulations, the applicants’ failure to maintain the continuity undoubtedly demanded by native title law?

There is at least redundancy here. But we argue that Olney J has indeed doubled the burden of proof.
Now ‘occupancy’, as Toohey J (in Mabo No. 2) is at pains to point out, is, in relation to traditional indigenous societies, meaningful physical presence on the land.[23]

[T]hat the use of the land was meaningful must be proved but it is to be understood from the point of view of the members of the society (3).[24]

It is clear, from the tense of Toohey J’s formulation, at this point in his judgment his reference is to the time of the assertion of sovereignty and, as we have indicated, it is to this time that Olney J’s requirement (not his finding) traces the demand for proof of occupancy. If there is any ‘relevant sense’ here, then it is only according to Toohey J’s explicit statement — still with reference to indigenous society at the time of annexation: ‘Presence would be insufficient to establish title if it was coincidental only or truly random’.[25]

As we know, Olney J has relied on his sympathetic and observant pastoralist for the best evidence of the meaningfulness of this ‘original’ occupancy. As a matter of form, this is hermeneutically dubious — in fact it is flagrantly ethnocentric — and it stems from Olney J’s disregard of the traditional oral, as well as the anthropological, evidence. As a reading of Toohey J, it is simply wrong, but our point here goes to substance. Olney J has imposed on the Yorta Yorta the burden of proving their use of the land now is meaningful not in the same terms, but in the same sense, as it was meaningful to their ancestors.

Olney J attaches Toohey J’s demand for meaningfulness to indigenous society now, and he adds it to Brennan J’s requirement for the maintenance of a substantial connection to land.

Let us note, though, the anticipation of this reading in Olney J’s use of Brennan J. Olney J misses the point of Brennan J’s formulation. The laws and customs to be observed and acknowledged in that formulation are ‘based on’ tradition. It is not Brennan J’s requirement that the substantial maintenance of a traditional connexion to land demands observance of the same laws and customs. For Brennan J, changes in these may occur ‘in time’.[26] They are not, or they are not simply, what Olney J fixes as the ‘traditional laws and customs’ (at 129) of a society bound to, rather than grounded in, ‘the conditions and practices of a pre-colonial past’.[27] As if the substance of those laws and customs would have to continue unchanged from generation to generation.

Olney J’s reading of Toohey J is even more incongruous. Toohey J, in common with the rest of the majority in Mabo (No. 2), explicitly addresses the issue of change in indigenous societies, but he does so with a clear acknowledgment that the kind of change to be anticipated is more than evolutionary and must take account of the impact of colonisation.

There is no question that indigenous society can and will change on contact with European culture.[28]

Elsewhere, he addresses

an argument to the effect that, regardless of the state of things at the time of annexation, the Meriam people now do not have title because they no longer exercise ‘traditional’ rights and duties and have adopted European ways.[29]

The argument, he says, fails:

[M]odification of traditional society in itself does not mean traditional title no longer exists. Traditional title arises from the fact of occupation, not the occupation of a particular kind of society or way of life. So long as occupation by a traditional society is established now and at the time of annexation, traditional rights exist. An indigenous society cannot as it were surrender its rights by modifying its way of life.[30]

The distortion in Olney J’s reading of Toohey J is revealed in his citing of this paragraph without its first and last sentences (at 3). The accent of his reading thereby falls on what is undoubtedly Toohey J’s continuity requirement: that occupancy then and now must be of a ‘traditional’ society. What, positively, this means for Toohey J is far from clear. But what is clear is that it cannot allow Olney J to attach the weight of Toohey’s qualification of ‘traditional’ society to an occupancy which is meaningful now in the same sense as it was then. This, though, is what Olney J does in his finding:

No group or individual has been shown to occupy any part of the land in the sense that the original inhabitants can be said to have occupied it. [at 121]

Invoking a requirement for the substantial maintenance of a connection to land and carrying that requirement to the meaning which such a connection has for the applicants, it is this doubled sense of occupancy – ‘the relevant sense’ — which demonstrates, not redundancy, but Olney J’s imposition of a similarly doubled, and doubly onerous, burden of proof on the Yorta Yorta.

Conclusion

What must be taken into account, once descent from an ancestor group whose use of the land was meaningful to them, is, on Toohey J’s formulation, a use of the land which is meaningful to the applicants, in terms sufficiently related to pre-contact society and cultural practices, as to allow their identification as members of a traditional society. On the formulation of other members of the Mabo (No. 2) majority, it is the maintenance of a substantial connection through continued observance of laws and customs. On either formulation, a court will have to listen to evidence pertaining to the applicants’ present relation to the claimed land, and make a decision on whether it satisfies the continuity requirement of native title law.

This is just what Olney J does not do, or rather, what he can be said to have done but on the basis that his continuity requirement doubles to exclude any change. As stated in his reasons for judgment, and before what he nevertheless considers an ‘appropriate ... mention’ of the evidence concerning the current practices of the claimants (at 121), Olney J has found — largely on the basis of the petition — that the culture of the applicants was ‘lost’ by 1881. Having already determined their lack of survival, he has heard the applicants’ evidence of their present relation to land solely as evidence of practices of revival (at 121).

Since the requirement of continuity contained in Toohey J’s judgment at least admits of the possibility of a resistance that takes place, as it were, in between survival and revival, it is, as we have argued, at least incongruous that Olney J takes him on the matter of proof of native title as a complement to Brennan J’s norm of extinguishment.

The requirement of Toohey J’s point of principle in the relevant passages, consistent with other majority judgments in Mabo (No. 2), was to read out of the common law the evaluation of indigenous society against a ‘scale of social organisation’ notched according to degrees of ‘civilisation’, as sanctioned by British and Australian authorities.[31] The evaluation that indigenous societies lay at the bottom of such a scale was premised on the claim these societies were essentially unchanging. It was, as we have indicated, a claim all of the majority judgments in Mabo (No. 2) rejected. While not authorised by the majority judgments in Mabo (No. 2), Olney J’s reading nevertheless owes something of its possibility to the norm of extinguishment which they contain and according to which some requirement for continuity is enforced. So is native title law being twisted here or is it working the cruel twist of declaring the claimants to be not native but nobody?

Encased in the metaphor of the tide of history, a decent answer to this question may be hard for an ethnocentric judiciary to find. In that case — which is to say, if the law cannot or will not reduce its indecency — we wish the Yorta Yorta well and encourage support for their occupation of part, at least, of their lands.[32]

The decision has been appealed to the Full Bench of the Federal Court.

References

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[1] 1606 FCA (18 December 1998). References in the text are to paragraph numbers of Olney J’s judgment.
[2] Mabo and Others v The State of Queensland [1992] HCA 23; (1992) 107 ALR 1, Brennan J, at 26.
[3] The land claimed was vacant and reserved Crown lands, state forest and park, various kinds of reserve, Aboriginal freehold land and a mine located on a 42,000 acre ‘grazing occupation permit’ (Yorta Yorta, above ref. 1, at para.10). Waters within a wider claim area included the Murray, Ovens, Goulburn and Edward Rivers.
[4] A ‘convenience’ that might be thought to say more than should be said about those having stakes in the native title industry.
[5] ‘The relevant sense’ of occupation which Olney J invokes here, with reference to Toohey J’s judgment in Mabo (No. 2), is considered later.
[6] The new s.225 which sets out the requirements for a determination of native title was held to be applicable, but the old s.82 with its mandatory requirement that the Court take account of the cultural and customary concerns of Aboriginal peoples was held to govern the Court’s approach (at 15 and 16).
[7] Mabo (No. 2), above ref. 2, at 43.
[8] Purdy, Jeannine, ‘Native or Nobody’, 1997, unpublished paper.
[9] Wik Peoples v State of Queensland and Others (1996) 141 ALR 129.
[10] Brennan J, in Mabo (No. 2) above, ref. 2, at 43.
[11] Brennan J, in Mabo (No. 2) above, ref. 2, at 43.
[12] For example: ‘[T]he Aboriginal historical tradition is less focused on establishing objective truth and assumes that the teller of the story is ... a part of the event being described’, in Delgamuukw v British Columbia (1997) 3. SCR, per Lamer CJ, at para. 85, citing Report of the Royal Commission on Aboriginal Peoples (1996), Vol. 1, (Looking Forward, Looking Back), at p.33.
[13] See, for example, Report on Queensland Criminal Justice Commission: ‘Aboriginal Witnesses in Queensland’s Criminal Courts’, Brisbane, Govt Printer, June 1996, in (1996) 1 Australian Indigenous Law Reporter 651, at 653; and Eades, D., ‘Communicating with Aboriginal Clients’, Law Society Journal, June 1993, 41.
[14] Olney J’s position on the credibility of oral testimony here is different from that in his earlier decision, in Mary Yarmirr & Ors v The Northern Territory of Australia & Ors (1998) 771 FCA (6 July 1998). See, for example, paras 57 and 64 of that decision.
[15] Again in Mary Yarmirr, above, ref.14, Olney J makes the general observation that ‘the law in Australia is readily capable of understanding without reference to external authority’ (at para 85).
[16] In Simon v The Queen (1985) 2 SCR 387, at 408.
[17] Delgamuukw, above, ref. 12, at paras 86-87.
[18] Recollections of Squatting in Victoria and The Australian Race: its origin, languages, customs, place of landing in Australia, and the routes by which it spread itself over that continent. These, it should be noted, were published in 1883 and 1886 respectively — some 40 or so years after the observations which they apparently record.
[19] lt is worth citing this petition in full (at 119):
‘To His Excellency Lord Augustus Loftus, G.C.B., Governor of the colony of New South Wales — The humble petition of the undersigned Aboriginal natives, residents on the Murray River in the colony of New South Wales, members of the Moira and Ulupna tribes, respectfully showeth:
1. That all the land within our tribal boundaries has been taken possession of by the Government and white settlers; our hunting grounds are used for sheep pasturage and the game reduced and in many places exterminated, rendering our means of subsistence extremely precarious, and often reducing us and our wives and children to beggary.
2. We, the men of our several tribes, are desirous of honestly maintaining our young and infirm, who are in many cases the subjects of extreme want and semi-starvation, and we believe we could, in a few years support ourselves by our own industry, were a sufficient area of land granted to us to us to cultivate and raise stock.
3. We have been under training for some years and feel that our old mode of life is not in keeping with the instructions we have received and we are earnestly desirous of settling down to more orderly habits of industry, that we may form homes for our families.
We more confidently ask this favour of a grant of land as our fellow natives in other colonies have proved capable of supporting themselves, where suitable land has been reserved for them.
We hopefully appeal to your Excellency, as we recognise in you, The Protector specially appointed by Her Gracious Majesty the Queen ‘to promote religion and education among the Aboriginal natives of the colony’, and to protect us in our persons and in the free enjoyment of our possessions, and to take such measures as may be necessary for our advancement in civilization.
And your petitioners, as in duty bound will ever pray.’
[20] Citing Rod Hagan, the applicants’ anthropologist, Olney J points out: ‘The name “Yorta Yorta” is preferred by most of the descendants of the original Aboriginal occupiers of the area today, although some prefer to use the word ‘Bangerang’. The two names refer to descendants of one and the same group (at 50).
[21] With reference to the United States, James Clifford has noted that ‘when Indians wrote — petitions, deeds, letters of complaint — it was to address white authorities and legal structures. Their voices were adapted to an imposed context’, ‘Identity in Mashpee’, in his The Predicament of Culture, Harvard University Press, 1988, p.340.
[22] Mabo (No. 2), above, ref.2, at 43.
[23] Recalling the conclusion which Olney J draws from his discussion of the petition — ‘that by 1881 those through whom the claimant group now seeks to establish native title were no longer in possession’ (at 121) — Toohey J, in Mabo (No. 2), above, ref. 2, at 147, adds that ‘presence on land need not amount to possession at common law in order to amount to occupancy’.
[24] Toohey J, in Mabo (No. 2), above, ref. 2, at 147.
[25] Toohey J, in Mabo (No. 2), above, ref. 2, at 146-7.
[26] Brennan J, in Mabo (No. 2), above, ref.2, at 44.
[27] Sutton, Peter, ‘Atomism versus Collectivism: The Problem of Group Definition in Native Title Cases’, in Anthropology in the Native Title Era, J. Fingleton and J. Finlayson (eds), Australian Institute of Aboriginal and Torres Strait Islander Studies, 1995, p.9.
[28] Toohey J, in Mabo (N.o 2), above, ref. 2, at 150.
[29] Toohey J, in Mabo (No 2), above, ref. 2, at 150.
[30] Toohey J, in Mabo (No 2), above, ref. 2, at 150.
[31] Toohey J, in Mabo (No 2) above, ref. 2, at 144.
[32] Rintoul, Stuart, ‘A frustrated people retreat into the forest’, The Weekend Australian, 14-15 November 1998, p.11.