Roberts, Amy --- "Native Title Using archaeology as evidence" [2001] AltLawJl 10; (2001) 26(1) Alternative Law Journal 41

• NATIVE TITLE
• Using archaeology as evidence

NATIVE TITLE
Using archaeology as evidence

Archaeological evidence can be vital in native title cases but may be problematic. AMY ROBERTS^[*] discusses.

All native title cases in Australia currently use anthropological and historical research as the major components of their examinations. As a result other forms of analyses that may be useful to Indigenous claimants are often overlooked or not used to their full advantage. One of these analyses is archaeology.^[1] Indeed, at a recent native title and archaeology workshop^[2] archaeologists called for a more dynamic approach to native title claims and felt that there was a need to educate lawyers about the ways in which archaeology can and should be used as a form of evidence. Hence, it was felt that there was a need to publish discussions about archaeology and native title in law journals.

It is important to note that archaeology has successfully been used as a major form of proof for native title claims in countries such as North America, Canada and New Zealand.^[3] For example in Delgamuukw v British Columbia^[4] it was established that proof of occupancy must include proof of physical presence (archaeology) on the land and may also include a recognition of the Indigenous people's traditional laws in relation to that land. In addition, it was established that physical occupation may be established in a variety of ways, including the construction of dwellings, cultivation of lands, and regular use of definite tracts of land for hunting, fishing or using its resources. It was also established that account must be taken of the Indigenous group's size, manner of life, material resources and technological abilities and the character of the lands claimed.^[5] Could the Australian legal system benefit from a similar determination? Indeed, in contrast to overseas procedures, the role of archaeological evidence in Australian cases has varied^[6] as have the court determinations.^[7]

So when should archaeology be employed in the native title process? There is now a general consensus that current theories in archaeology can provide appropriate frameworks through which 'narratives' for the continuities and transformations experienced by Indigenous Australian societies since European invasion can be written.^[8] The material evidence for continuity and transformation during the post-invasion period in Australia may include items such as Aboriginally modified European materials,^[9] food processing sites, shelters (which use both traditional and European materials), ceremonial and camping sites which exhibit repeated and structured occupation during pre and post invasion periods, evidence of continued trade as well as other sites such as quarry sites that have been in continuous use since pre-invasion times.^[10] Indeed, archaeological evidence may be of vital importance in providing proof about occupation for the post-invasion period particularly in relation to fringe camps, station camps and Indigenous mission sites as unbiased historical evidence is often lacking in these areas. This archaeological evidence must, by reasons of common law, be linked with the Indigenous claimants (the real expert witnesses)through oral histories.^[11] Indeed, archaeologists at the aforementioned native title and archaeology workshop^[12] were at pains to stress that archaeology should be integrated with the testimony of the Indigenous claimants and hence should at all costs avoid using desktop research only.^[13] Furthermore they were concerned that this process of linking

claimant testimony to archaeology be carried out carefully. Indeed, simply linking claimant testimony to archaeological inferences and reconstructions based on foreknowledge and use of sites rather than interpretive integration is problematic from both a practice and evidentiary point of view. Thus the importance of collecting Indigenous claimant testimonies on their own country and at the archaeological sites under investigation are vitally important steps in this process. Archaeological evidence is also, of course, vital in establishing deep antiquity. It is often important to establish this fact because, as Veth points out 'Deep time provides authority and continuity ... ' ^[14] However it is also important to point out, as Veth again notes, that while deep time is of some relevance it is actually the more recent periods that hold major sway in native title cases and which provide the evidence for continuity.

When is using archaeological evidence problematic? Most archaeologists would agree that using archaeological evidence in Australia to address questions of ethnicity and cultural boundaries is often problematic (an exception to this may be rock art and some specific items of material culture). Hence, although at present archaeological evidence may contribute positively to a native title claim it may not be useful in demonstrating exclusive possession and consequently full beneficial ownership. ^[15] Indeed, any consideration of how contemporary boundaries have been defined for Indigenous groups that have achieved native title reveals varying models based on features such as the tribe (language ownership), cultural blocks, marriage networks, ceremonial alliance systems and so on.^[16] Certainly, in neither the Yorta Yorta nor Miriuwung-Gajerrong cases was the archaeology considered separately from other evidence.^[17] Due to these issues relating to ethnicity some have questioned whether we should simply focus on the homogeneity of archaeological phenomena which may be reliably linked to claimants employing the concepts of domestic and totemic landscapes.^[18]

It should also be noted that some archaeologists^[19] believe that what constitutes reliable and plausible evidence in court raises serious epistemological questions for archaeology and hence legal practitioners. Indeed, the Evidence Act is often in direct conflict both with archaeological evidence and with cultures that are orally based.^[20] Many archaeologists are now beginning to grapple with these epistemological questions as they relate to native title and I am sure there will be many ensuing publications on these issues.

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^[*] Amy Roberts is a PhD candidate in archaeology at FlindersUniversity, South Australia. email: [e-mail]

^[1] In general terms anthropology may be considered the study of the human species whereas archaeology is the study of the material traces of the human past.

^[2] This workshop was organised in conjunction with the Australasian Society for Historical Archaeology and the Australian Institute for Maritime Archaeology conferences and sponsored by the Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit and Flinders University Archaeology

Department.

^[3] Veth, P., 'The Consultant Archaeologist Working with Native Title: Current Issues and Future Directions', Native Title and Archaeology Workshop - ASHAIAIMA Conference, 27 November 2000.

^[4] Delgamuukw v British Columbia (1997) 3 SCR.

^[5] Canier Sekani Tribal Council's summary of the Supreme Court of Canada decision in the

Delgamuukw v British Columbia case, 15 December 2000 <http:/lcstc.bc.ca/treaty/delgmkwsmry.html>.

^[6] It must be noted here that the role of archaeological evidence in these cases varied to some extent to the degree of claimant connection; above, ref 3.

^[7] The key cases where archaeology has been used to address elements of Indigenous connection to, occupation and use of land include the Miriuwung-Gajerrong. Yorta Yorta and Ngarluma-Yindjibarndi native title claims.

^[8] Veth, P. and McDonald, J., 'Can Archaeology be used to Address the Principle of Exclusive Possession in Native Title?', Australian Archaeological Association Conference, 30 November 2000.

^[9] For example European glass that has been fashioned in the same manner as stone artefacts.

^[10] Above, ref 3

^[11] There is a necessity under common law to link contemporary claimants' activities with material sites that may date back to Sovereignty and pre-invasion. It is a strategy that ensures that common law elements will be more likely met - it is not required per se under the Native Title Act; Veth, P., personal communication 2001.

^[12] Above, ref 2.

^[13] Indeed, many believe that the Yorta Yorta claim failed because it failed to link the archaeological sites with the claimants' testimony. See Fullagar, R. and Head, L., 'Symposium: Archaeology, Indigenous Land Rights and Settler Societies in the 21st Century', World ArchaeoIogical Congress, 10 January 1999, p.4.

^[14] Above, ref 3.

^[15] Above, ref 8.

^[16] Above, ref 8.

^[17] Above, ref 13.

^[18] Above, ref 8.

^[19] See Riches, L., 'Native Title and the Archaeology of Aboriginal Land', Australian Archaeological

Association Conference, 30 November 2000.

^[20] Above, ref 19.