DRAWING INFERENCES IN THE PROOF OF NATIVE TITLE – HISTORIOGRAPHIC AND CULTURAL CHALLENGES AND RECOMMENDATIONS FOR JUDICIAL GUIDANCE

SCOTT SINGLETON

N2076357

BA, LLB (Qld), LLM (Hons) (QUT), Grad Dip Mil Law (Melb) Solicitor of the Supreme Court of Queensland Legal Practitioner of the High Court of Australia

Submitted in fulfillment for the degree of Doctor of Juridical Science

SUPERVISOR: PROFESSOR BILL DUNCAN

ASSOCIATE ASSOCIATE PROFESSOR BILL DIXON SUPERVISOR:

EXTERNAL PROFESSOR JONATHAN FULCHER (UQ) SUPERVISOR:

Faculty of Law

Queensland University of Technology

2018

KEYWORDS

Evidence - expert witnesses - historiography - inferential reasoning - judicial guidance - law reform - native title - oral evidence - proof of custom

2 | P a g e ABSTRACT On 30 April 2015, the Australian Law Reform Commission (ALRC) delivered its report Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Connection Report).

The terms of reference for the inquiry leading up to the ALRC Connection Report included a request that the ALRC consider “what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks,” including with particular regard to “connection requirements relating to the recognition and scope of native title rights and interests.”

Amongst its recommendations, the ALRC Connection Report recommended guidance be included in the Native Title Act 1993 (Cth) regarding when inferences may be drawn in the proof of native title, including from contemporary evidence.

To date, this recommendation has not been taken up or progressed by the Commonwealth Government. This thesis therefore develops such “Inference Guidelines” for the purposes of the proof of connection requirements in native title claims, in the form of a “Bench Book.”

This thesis identifies various motivations for ensuring comprehensive, consistent and transparent guidelines for drawing inferences from historically-based sources of evidence. It also identifies and analyses matters for inclusion in the Inference Guidelines drawn from historiographic and epistemological debates, cultural and linguistic challenges for Aboriginal and Torres Strait Islander oral evidence, and inferential theory.

In addition to developing the Inference Guidelines, a finding of this thesis is that the existing case law provides a strong foundation for clear and consistent principles for inferential reasoning in native title cases, but the broader literature provides a useful supplement to this in some aspects. The Courts may have regard to these further matters through judicial notice, the discretionary nature of inferential reasoning and the background or common sense factors which influence the inferences drawn by individual judges. This can fofm a “bright line test” or “taxonomy” for such matters, to the extent that the Inference Guidelines provide a single reference to a comprehensive and consistent set of principles and methods which can guide the Court’s reasoning (accompanied by a greater level of certainty and transparency for the parties).

Finally, this thesis identifies an over-riding requirement for inferential reasoning, namely that inferences may only be drawn where they are supported by evidence (beyond the unsystematic and fragmentary) which can provide a foundation for those matters required to be proved in relation to connection in a native title determination. Notwithstanding the need to alleviate the specific evidentiary challenges faced by native title claimants, inferential reasoning cannot bypass the elements required to be proven, without enlarging the scope of what constitutes native title at law.

3 | P a g e TABLE OF CONTENTS

KEYWORDS...... 2 ABSTRACT...... 3 TABLE OF CONTENTS...... 4 ABBREVIATIONS...... 7 STATEMENT OF ORIGINAL AUTHORSHIP...... 11 ACNOWLEDGEMENTS...... 12 INTRODUCTION...... 13 Background...... 13 Aim and research questions...... 16 Methodology...... 17 Structure...... 18 Literature Review...... 19 CHAPTER 1 - PROVING NATIVE TITLE...... 24 Overview of Chapter 1...... 24 1. Preamble and Objects of the Native Title Act...... 24 2. Native title proof - what this involves...... 25 3. Types of witnesses...... 27 4. The Rules of Evidence and Procedure...... 32 5. Conclusion to Chapter 1...... 37 CHAPTER 2 - THE ALRC REFORM PROPOSALS AND THEIR DRIVERS...... 39 Overview of Chapter 2...... 39 1. Eminent persons’ calls for reform...... 39 2. Native Title Amendment (Reform) Bill 2011...... 42 3. Native Title Amendment (Reform) Bills 2012 and 2014...... 43 4. ALRC Connection Report terms of reference...... 43 5. ALRC Connection Report recommendations...... 45 6. Conclusion to Chapter 2...... 50 CHAPTER 3 - THE JUDICIAL-HISTORICAL ENDEAVOUR...... 51 Overview of Chapter 3...... 51 1. International law...... 52 2. Reconciliation...... 53 3. National identity and legitimacy...... 54 4. Knowledge preservation...... 56 5. Public confidence...... 58 6. Conclusion to Chapter 3...... 59 CHAPTER 4 - HISTORIOGRAPHIC AND EPISTEMOLOGICAL CONTROVERSIES...... 60 Overview of Chapter 4...... 60 1. The “History Wars”...... 61

4 | P a g e 2. Native Title by definition...... 62 3. Rules of evidence and standard of proof...... 65 4. Lack of coherence of functions and method...... 67 5. Context, gaps and silences in the documentary record...... 70 6. Genre and “Settler history”...... 73 7. Error...... 78 8. Subjectivity, advocacy, bias and politics...... 80 9. Multiple filters...... 83 10. Unease amongst the adversarial system...... 85 11. Conclusion to Chapter 4...... 86 CHAPTER 5 - CHALLENGES FOR CLAIMANT ORAL EVIDENCE...... 88 Overview of Chapter 5...... 88 1. Particular considerations for indigenous witnesses...... 88 2. Difference of language and non-verbal communication...... 90 3. Avoidance of eye contact, silences and limits on rights or abilities to speak...... 90 4. Contrasting information exchange methods...... 93 5. Suggestibility, gratuitous concurrence and scaffolding...... 94 6. Different conceptions of time and place...... 95 7. Speech, hearing and memory impairment...... 96 8. Consequences of and means to accommodate cultural factors...... 97 9. Balancing the archive and experts with oral evidence...... 99 10. Conclusion to Chapter 5...... 101 CHAPTER 6 - THEORIES OF INFERENCE IN THE JUDICIAL CONTEXT...... 103 Overview of Chapter 6...... 103 1. The need for inference...... 103 2. Deduction, induction and abduction...... 106 3. Wigmore’s narrative and chart methods...... 107 4. Generalisation, background knowledge and “common sense”...... 109 5. Cross-cultural interpretive ethos...... 112 6. Concerns with mathematical approaches...... 113 7. Explanation-based reasoning...... 115 8. Other approaches...... 116 9. Conclusion to Chapter 6...... 119 CHAPTER 7 - GENERAL LAWS OF INFERENCE...... 121 Overview of Chapter 7...... 121 1. Basic principles...... 121 2. Standard of proof for inferences...... 123 3. Matters which fall short of inferential standards...... 126 4. Prospectant evidence, retrospective evidence and proof of custom...... 127 5. Tactical burden and adverse inferences...... 128 6. Inference in expert evidence...... 131 7. Statutory guidance for inference drawing...... 134

5 | P a g e 8. Conclusion to Chapter 7 136 CHAPTER 8 - INFERENCE DRAWING IN NATIVE TITLE DETERMINATIONS - SUCCESSES AND CHALLENGES...... 138 Overview of Chapter 8...... 138 1. Acknowledgement of challenges and need for inference...... 139 2. Foundations for inferential reasoning...... 141 3. Gumana Principles...... 143 4. Assessments at the relevant points in time...... 147 5. Genealogical evidence...... 151 6. Geographic boundaries...... 152 7. Expert evidence...... 154 8. Inferences of failure to maintain connection...... 156 9. Challenges for overlapping claims...... 159 10. Disregarding prior extinguishment...... 160 11. Adverse inferences and tactical burden...... 161 12. Conclusion to Chapter 8...... 163 CHAPTER 9 - CONCLUSION...... 166 1. Summary of Chapters...... 166 2. Limitations and recommendations for future research...... 168 3. Findings...... 168 APPENDIX - INFERENCE GUIDELINES...... 174 BIBLIOGRAPHY...... 214

6 | P a g e ABBREVIATIONS

ALRC Australian Law Reform Commission

ALRC Connection Australian Law Reform Commission Connection to Country: Review of the Report Native Title Act 1993 (Cth) Final Report (ALRC Report 126, 2015)

Alyawarr Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472

Anderson Anderson v Wilson [2000] FCA 394

Badimia CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204

Banjima Banjima People v State of Western Australia (No 2) [2013] FCA 868

Bennell Bennell v State of Western Australia [2006] FCA 1243

Bodney Bodney v Bennell [2008] FCAFC 63

Briginshaw Briginshaw v Briginshaw (1938) 60 CLR 336

CAVR Commission for Reception, Truth and Reconciliation for Timor-Leste

Daniel Daniel v State of Western Australia [2003] FCA 666

Daniels Daniels v State of Western Australia [2000] FCA 858

De Rose De Rose v South Australia [2002] FCA 1342

De Rose FC De Rose v South Australia [2005] FCAFC 110

Delgamuukw Delgamuukw v British Columbia (1993) 104 DLR (4th) 470

Delgamuukw CSC Delgamuukw v British Columbia (1997) 153 DLR (4th) 193

Dempsey Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528

Evidence Act Evidence Act 1995 (Cth)

7 | P a g e Expert Witness Federal Court of Australia Expert Evidence Practice Note (GPN-EXPT), J L B Code Allsop, Chief Justice, 25 October 2016

FCA Federal Court of Australia Act 1976 (Cth)

FCR Federal Court Rules 2011 (Cth)

Gale Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374

GvH GvH (1994) 181 CLR 387

Griffiths Griffiths v Northern Territory of Australia [2006] FCA 903

Gudjala Gudjala People (No 2) v Native Title Registrar [2009] FCA 1572

Gumana Gumana v Northern Territory of Australia [2005] FCA 50

Hearsay Rule Section 59 of the Evidence Act, which provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that can reasonably be supposed that the person intended to assert by the representation.

HREOC Australian Human Rights and Equal Opportunity Commission

ICTY International Criminal Tribunal for the former Yugoslavia

Inference A judicial aid to provide guidance regarding when inferences may be drawn Guidelines in the proof of native title rights and interests, consistent with recommendation 7-1 of the ALRC Connection Report, and set out in the form of a Bench Book in the appendix to this thesis.

Jango Jango v Northern Territory [2006] FCA 318

Jones v Dunkel Jones v Dunkel (1959) 101 CLR 298

Lake Torrens Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899

Lardil Lardil Peoples v State of Queensland [2004] FCA 298

Lopes Lopes v Tay/or (1970) 44 ALJR 412

Mabo Mabo v State of Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1

Mason Mason v Tritton (1994) 34 NSWLR 572

8 | P a g e MUirrpum MUirrpum v Nabalco Pty Ltd (1971) 17 F.L.R. 141

Narrier Narrier v State of Western Australia [2016] FCA 1519

Native Title Act Native Title Act 1993 (Cth)

Ngarla AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268

NNTT National Native Title Tribunal

Neowarra Neowarra v State of Western Australia [2003] FCA 1402

Opinion Rule Section 76 of the Evidence Act, which provides that evidence of an opinion is not admissible to prove the existence of a fact about which the opinion was expressed.

Rich Australian Securities and Investments Commission v Rich [2005] NSWCA 152

Risk Risk v Northern Territory of Australia [2006] FCA 404

Rubibi Rubibi Community v State of Western Australia [2001] FCA 607

Rubibi No 5 Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025

Sam pi FC Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26

Seltsam Seltsam Pty Ltd v McGuinness (2000) NSWCA 262

Soulemezis Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

UNDRIP United Nations Declaration on the Rights of Indigenous People

Van der Peet R v Van der Peet [1996] 2 SCR 507

Waanyi Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625

Ward Ward v State of Western Australia (1998) 159 ALR 483

Ward FC State of Western Australia v Ward [2000] FCA 191

9 | P a g e

I Ward HC State of Western Australia v Ward (2002) 191 ALR 1; [2002] HCA 28

Wik Wik Peoples v State of Queensland (1996) 187 CLR 1

Wongatha No 7 Harrington-Smith v State of Western Australia (No 7) [2003] FCA 893; (2003) FCR 424

Wongatha No 9 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31

Wyman Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229

Yarmirr Yarmirr v Northern Territory of Australia (No 2) (1998) 156 ALR 370

Yarmirr FC Commonwealth v Yarmirr [1999] FCA 1668

Yorta Yorta Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606

Yorta Yorta FC Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45

Yorta Yorta HC Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; 194 ALR 538

10 | P a g e STATEMENT OF ORIGINAL AUTHORSHIP

The work contained in this thesis has not been previously submitted to meet requirements for an award at this or any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made. QUT Verified Signature

Signed:

Date:

11 | P a g e ACNOWLEDGEMENTS

I am extremely grateful for the advice and assistance provided by a number of people over the course of the research for this thesis. Special thanks go to my supervisory team for their guidance throughout the preparation of this thesis. Professor Bill Duncan and Associate Professor Bill Dixon of QUT Law School provided tremendous support in keeping me on track to complete this work, and were a great source of advice in relation to the applicable standards and expectations for the thesis generally and codification of applicable principles specifically . I am especially grateful to them both for stepping in to complete the supervision of this thesis part way through the process.

My external supervisor, Professor Jonathan Fulcher of the University of Queensland, remained a constant source of terrific advice across the various aspects of the thesis, drawing on his expertise as both an historian and a native title lawyer, most recently in relation to the opportunity to focus the research on matters arising from the ALRC Connection Report.

I am extremely grateful to Professor Douglas Fisher for having been my principal supervisor for a number of years prior to his retirement from QUT. His support and sage advice was always very helpful. Similarly, Dr Gary lanziti, then the Director of the Humanities Research Program at QUT, was previously an associate supervisor and provided helpful assistance with matters of historiography.

I am grateful for the assistance of Margaret Stephenson of the University of Queensland Law School, as the external panelist for my confirmation of candidature, and Tony Denholder of Ashurst Lawyers, as the external panelist for my final seminar.

I would also like to thank various other people who have provided helpful advice and assistance over the course of this research. Professor Simon Young, Ann Wallin and Jose Teixeira all provided helpful early suggestions on key sources. Registrar Chris Fewings, then of the Federal Court and now of the National Native Title Tribunal, gave useful guidance on procedural developments for native title expert evidence. Dr Angus Frith and Joe Sambono provided helpful suggestions in relation to Bench Books as a source of guidance to the Court. Cathy Marr of the Waitangi Tribunal generously provided her insights into comparative procedural issues. Andrea Olsen, with whom I co-presented a paper on reform issues at the AIATSIS National Native Title Conference in 2017, was a great source of insights into broader implications generally.

Special thanks to senior Karingbal elder Charles Stapleton, for informally sharing his experiences with me, which provided a level of validation of the complexities involved in the native title judicial system.

Finally, I am indebted to my wife Catherine Singleton, and to our children Hamish, Skye and Alasdair, for their support and sacrifices made over a long period of time, which have allowed me the opportunity to complete this thesis.

12 | P a g e Introduction

Background Notwithstanding the comments of Brennan J in Mabo v State of Queensland (No. 2)1 (Mabo) that the “difficulties of proof... afford no reason for denying the existence of a proprietary community title capable of recognition by the common law,”2 the Native Title Act 1993 (Cth) (Native Title Act) places a very heavy burden on claimants if they are to successfully prove the existence of native title. The need to prove, on the balance of probabilities, native title rights and interests are possessed under laws acknowledged and customs observed is complicated by the requirement that such laws and customs be traditional ones. These requirements further encompass the need for the claimants to evidence connection, by those traditional laws and customs, with the land or waters the subject of the claim.3

The Court’s interpretation of the statutory definition of native title has further complicated these matters, as borne out by the statements of Gleeson CJ and Gummow and Hayne JJ in the High Court’s judgment in Members of the Yorta Yorta Aboriginal Community v State of Victoria,4 (Yorta Yorta HC) in the following two fundamental respects:

• The concept of “traditional” requires that such laws and customs “are to be found in the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown" (emphasis added).5 Further, “the connection which the peoples concerned have with the land or waters must be shown to be a connection by their traditional laws and customs ... understood ... [by reference] to the body of law and customs acknowledged and observed by the ancestors of the claimants at the time of sovereignty’ (emphasis added).6 • Possession of rights and interests in land or waters under traditional laws acknowledged and traditional customs observed “requires that the normative system under which the rights and interests are possessed ... has had a continuous existence and vitality since sovereignty’ (emphasis added) and not be pursuant to “any later attempt to revive adherence to the tenets of that former system.”7 Put another way, “acknowledgment and observance of those laws and customs must have continued substantially uninterrupted since sovereignty’ (emphasis added), for the laws and customs observed now to be categorised as “traditional” and “transmitted from generation to generation of the society for which they constituted a normative system giving rise to rights and interests in land,” rather

1 [1992] HCA 23; (1992) 175 CLR 1 2 Ibid at [53] 3 Native Title Act 1993 (Cth) s 223(1) 4 (2002) 214 CLR 422; 194 ALR 538 5 Ibid, at [46] 6 Ibid, at [86] 7 Ibid, at [47]

13 | P a g e than a “body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples.”8

These requirements have been applied by the Courts at various levels in subsequent native title cases. For example, Mansfield J in Risk v Northern Territory of Australia9 (Risk) distilled these requirements down as follows:

whether the acknowledgment and observance of the laws and customs has continued substantially uninterrupted by each generation since sovereignty, and whether the society has continued to exist throughout that period as a body united in and by its acknowledgment and observance of those laws and customs.'10

Whilst native title rights and interests need not be the same as those that existed at sovereignty and may alter and develop thereafter, they must continue to find their origin in pre-sovereignty law and custom.11 Thus evidence of the ongoing existence of native title claims must be obtained from sources reaching back, in some instances, approaching 230 years. Compounding matters further, these legal hurdles apply notwithstanding the evidentiary record available to native title claimants is often both qualitatively and quantitatively far more challenged than that which is available in most other forms of litigation.

The consequence of this conglomeration of difficulties is two-fold. Firstly, as Bartlett states:

the task for the claimants, in an area of intensive European settlement, becomes almost insurmountable. The end result is that native title claimants in remote areas will find proof of native title very difficult, but in urban areas and the South they are likely to find it nigh on impossible.12 13

These hurdles were recognised very early on in native title jurisprudence. For example, with reference to genealogical evidence, Kirby P (as His Honour then was) in Mason v Tritton13 (Mason) was conscious of the “many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days” which made proof by recorded details next to impossible.14

Secondly, if the “insurmountable/nigh on impossible” nature of the demands are to be countered, and to deliver upon the remedial nature and beneficial purpose of the Native Title Act, there is inherently a greater calling on the Courts to draw inferences from the available evidence to determine that proof of native title existence is made out. To do otherwise, with reference to Kirby P in Mason again, would be “unreasonable and unrealistic.”15

8 Ibid, at [87] 9 [2006] FCA 404 10 Ibid, at [97(c)] 11 Bodney v Bennell [20081 FCAFC 63 at [120] 12 Bartlett, R. H. Native Title in Australia (3rd ed), LexisNexis Butterworths, Chatswood, 2015, at 243 - 244 13 (1994) 34 NSWLR 572 14 Ibid, at 588 15 Ibid

14 | P a g e Such inferences may be drawn based on evidence including that given orally by native title claim group members, by reference to sources from the archive, and through reports from and the examination of expert witnesses. But these approaches bear out their own challenges, both in relation to consistent principles for inference drawing and in relation to assessing historically-sourced evidence generally. The former conundrum is highlighted again by Gleeson CJ, and Gummow and Hayne JJ in the Yorta Yorta HC, in stating:

It is not possible to offer any ‘single bright line test’ for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant'6 (emphasis added).

The latter conundrum was aptly highlighted by Gummow J in Wik Peoples v State of Queensland,''7 (Wik) in that “[t\here remains lacking, at least in Australia any established taxonomy to regulate such uses of history in the formulation of legal norms’™ (emphasis added).

In the context of such matters, on 30 April 2015, the Australian Law Reform Commission (ALRC) delivered its report Connection to Country: Review of the Native Title Act 1993 (Cth) (ALRC Report 126, 2015) (ALRC Connection Report). The ALRC Connection Report was in response to terms of reference issued by the then Commonwealth Attorney General on 3 August 2013 for inquiry and report under section 20(1) of the Australian Law Reform Commission Act 1996 (Cth). These terms of reference included a request that the ALRC consider “in light of the Preamble and Objects of the [Native Title Act] what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks” including with particular regard to “connection requirements relating to the recognition and scope of native title rights and interests.”1619 17 18

Amongst its recommendations, the ALRC Connection Report rejected amendments to the Native Title Act to introduce a presumption of continuity/ reversal of the onus of proof of such matters, recommended amendments to the definition of native title in section 223 of the Native Title Act, and recommended guidance be included in the Native Title Act regarding when inferences may be drawn in the proof of native title, including from contemporary evidence (Inference Guidelines).20

In G v H21 (G v H) Brennan and McHugh JJ gave the following definition of inference, which was referred to in the ALRC Connection Report:

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law.22

16 (2002) 214 CLR 422, at [82], adopting the language of Spigelman CJ noted in Seltsam Pty Ltd v McGuiness (2000) NSWLR 262 and since adopted in the New South Wales Court of Appeal in Coles Supermarkets Australia Pty Ltd v Bright [2015] NSWCA 17 17 (1996) 187 CLR 1 18 Ibid, at 182-183 19 Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) Final Report, ALRC Report 126, April 2015, at 6 to 7 20 Ibid, at 146, 220 to 221 21 (1994) 181 CLR 387 22 Ibid, at 390; ALRC, op cit, at 217

15 | P a g e Whilst the recommended Inference Guidelines have not, at the date of this thesis, been implemented, representatives of the Commonwealth Attorney-General’s Department stated at the National Native Title Conference in Townsville in June 2017 that work was ongoing in relation to the implementation of the ALRC Connection Report.23 However a November 2017 options paper focuses only “on improvements to claims resolution, agreement-making and dispute resolution processes, rather than proposing significant changes to the key concepts of the law (including on connection and the content of native title).”24

Aim and research questions The aim of this thesis is to develop appropriate Inference Guidelines in line with the ALRC recommendations. These Inference Guidelines take the form of a “Bench Book.” The intention in developing the Inference Guidelines is therefore to provide the Federal Court and Courts of appeal therefrom, as well as other Courts who are called upon to deal with matters relevant to native title, with a similar style of resource as the Bench Books that the State Courts in Queensland,25 New South Wales26 and Western Australia27 have the benefit of (although in this case, the Bench Book extends to comprehensively capturing the applicable case law, in addition to supplementary considerations).

The proposed Inference Guidelines are attached at the appendix to this thesis. As a mere guideline or Bench Book, the Inference Guidelines can only operate prospectively. It is acknowledged that many previously unsuccessful native title claimants (and perhaps some unsuccessful respondents) may consider a different approach may have been open if the Courts had the benefit of guidelines for inference during earlier trials. However, it would be a matter for far-ranging legislative amendments to make such matters operate retrospectively, and as the Inference Guidelines are aimed at a codification of existing practice, retrospective operation is not something contemplated by this thesis.

This thesis is an original contribution to knowledge, in that it develops these Inference Guidelines, not just because the ALRC has determined a genuine need for them, but also given the suggested gaps in the relevant law identified by the High Court judgments referred to previously. It is an attempt to provide a greater foundation for a “bright-line test” in these matters, whilst also seeking to identify elements of a “taxonomy” to regulate uses of historically sourced evidence and instill these into that test. Such a contribution is consistent with the requirements of native title, for which Black CJ stated

23 Walter, A and Z Sanderson, “Amendments to the Native Title Act - recent changes and the process for future reforms” Australian Institute of Aboriginal and Torres Strait Islander Studies National Native Title Conference, Townsville, 7 June 2017 24 Commonwealth Attorney General’s Department Reforms to the Native Title Act 1993 (Cth) Options Paper, November 2017 at 3 https://www.aq.qov.au/Consultations/Documents/options-paper-proposed-reforms-to-the-native-title-act-1993.PDF (accessed 5 December 2017) 25 Supreme Court of Queensland, Equal Treatment Benchbook (2nd ed) http://www.courts.qld.qov.au/ data/assets/pdf file/0004/94054/s-etbb.pdf (accessed 11 November 2017) 26 Judicial Commission of New South Wales, Equality Before the Law Benchbook (Release 10), July 2016 https://www.iudcom.nsw.qov.au/wp-content/uploads/2016/07/Equalitv before the Law Bench Book.pdf#paqe23 (accessed 11 hJovember 2017) 27 Supreme Court of Western Australia, Equal Justice Bench Book, http://www.supremecourt.wa.qov.aU/equaliustice/C/chapter aboriginal people.aspx?uid=669-9495-04-2416 (accessed 11 November 2017)

16 | P a g e “[t]he emphasis on developing appropriate procedures reflects the understanding that this area of the law is unique and that unique procedures are required.”28

In developing these Inference Guidelines, this thesis addresses the following research questions:

1 What issues are raised in the literature on remedial justice for indigenous people, recent Australian historiographic and epistemological debates, and existing literature and tools used by the Courts in relation to special considerations regarding oral evidence of Aboriginal and Torres Strait Islander peoples, which give rise to the inference imperative in native title? 2 To what extent have the Courts already developed principles akin to informal guidelines, through the application of consistent bases, for the drawing of inferences in relation to the connection requirements for a native title determination, and to what extent do these provide a bright line test or established taxonomy for such matters? 3 How can balance be achieved in Inference Guidelines to ensure the remedial objects of the Native Title Act are achieved and the mischiefs identified by the Courts and elsewhere are accounted for, without impermissibly enlarging the scope of what constitutes native title?

In light of the answers determined in relation to these questions, the Inference Guidelines developed as the outcome of this research should facilitate a more comprehensive, consistent and transparent approach to proof of native title.

Methodology This thesis involves applied research, in that it is concerned with accessing existing accumulated theories and knowledge across the fields of law, historiography and epistemology. These accumulated theories are then directed towards a solution, being the alleviation of the duel deficiencies in native title claims identified previously, namely a lack of a “bright line test” for inference drawing and an “established taxonomy” to regulate uses of historically-sourced evidence. From there, the ultimate outcome of this thesis is a workable set of Inference Guidelines.

To answer the research questions referred to above, and ultimately develop Inference Guidelines, the research methods adopted for this thesis require a study of the proof of native title, particularly through the drawing of inferences from archival, expert and claimant oral evidence, having regard to historiographic, anthropological and other epistemic principles and controversies, and cultural and linguistic considerations.

To properly accomplish this objective, it is necessary to identify common themes emerging in each of the fields of consideration, and in each successive chapter build upon the previously identified themes where relevant. Issues arising from these themes are then applied holistically as the foundations for the Inference Guidelines. The themes are identified from:

28 Black, M. “Developments in Practice and Procedure in Native Title Cases,” (March 2002) 13 Public Law Review '\6 at 17, with reference to Delgamuukw v British Columbia 153 DLR (4th) (1993) per Lamer CJ: “aboriginal rights are truly sui generis and demand a unique approach to the treatment of evidence which accords due weight to the perspective of aboriginal peoples.”

17 | P a g e • The considerations set out by the ALRC in support of the need for Inference Guidelines in native title claims; as well as those the subject of other calls for and attempts at reforms with similar objectives. • Relevant considerations arising from literature on remedial justice for indigenous peoples; recent Australian historiographic debates on the use and reception of evidence in native title, including from participants in the so-called “History Wars”29 and other anthropological, historical, legal and Indigenous commentators on such matters; and specific cultural and linguistic factors that have been identified as relevant to the assessment of the credibility and demeanour of indigenous witnesses. • General principles from the law of evidence, as well as legal theories relating to inference drawing. • Principles adopted by Australian Courts that have successfully facilitated inferential approaches to the assessment of connection evidence, in the face of statutory, case law, archival and cultural challenges in native title claims.

The research involved in this thesis is subject to a number of limitations. It does not, in any detailed manner, delve into the processes of inferential reasoning adopted by experts themselves, or embark on the theoretical aspects of historiography and epistemologies adopted by such experts. To the extent issues in relation to expert evidence is analysed, it does so on the basis of the relevant literature and does not involve, for example, interviews with persons who have acted as expert witnesses in native title hearings. Similarly, the research is reliant on the literature in relation to cultural and linguistic issues for claimant oral evidence, and does not extend to interviews with actual claimant witnesses. These are areas that would be appropriate for future research.

Structure Chapter 1 of this thesis provides an overview of the Native Title Act preamble and objects, the key evidentiary requirements applicable to native title claims by virtue of the statutory definition of native title, what a determination of native title must include and the application of the rules of evidence. It also considers sources of expert (primarily anthropological and historical) evidence and claim group member oral evidence and what these may be used to prove, as well as the relevant statutory and case law bases for the admission of such evidence.

Chapter 2 then sets out previous calls for and attempts at reform relevant to the requirements for proof of native title, and summarises the key reforms proposed by the ALRC in relation to proof of native title and Inference Guidelines.

Chapters 3, 4 and 5 address the drivers behind the inference imperative in native title claims, by analysing the broader remedial justice motivations to improve the “judicial-historical endeavour;”

29 For a useful summary of what was involved in the “History Wars," see Attwood, B and S.G. Foster “Introduction,” in Attwood, B and S.G. Foster, Frontier Conflict - The Australian Experience, National Museum of Australia, Canberra, 2003, pages 1 -30; and Curthoys, A. and J. Docker, Is history fiction? UNSW Press, Sydney, 2006, at 220 - 237

18 | P a g e recent Australian historiographic and associated epistemic controversies; and cultural and linguistic issues specific to the oral evidence of Aboriginal and Torres Strait Islander Peoples respectively.

Chapter 6 analyses the general theories of inference in the judicial context. Chapter 7 then assesses the extent to which inferential reasoning is underpinned by the common law and statute law generally.

Chapter 8 considers the role of and principles for inference drawing in native title determinations to date, including factors that have supported inferences in favour of connection by the native title claim group, and factors that have challenged the ability to draw favourable inferences.

Chapter 9 draws together the common and specific issues and themes identified and analysed in the previous chapters, and answers each of the research questions based upon these. The suggested Inference Guidelines are appended thereafter, based on the various issues considered holistically.

Literature Review The review of the literature confirms that no attempts have previously been made to codify issues and criteria as guidelines for the drawing of inferences in native title determinations (or indeed, for general litigation). This was also the conclusion arrived at by Epstein and King,30 who stated that “the complete list of all law review articles devoted to improving, understanding, explicating, or adapting the rules of inference is as follows: none.”31 Those authors describe themselves as providing the “first cut” at such matters.32 However whilst that article provides some useful material which is referred to in Chapter 6, it is largely directed at inferential reasoning in academic legal research and is of limited utility in relation to judicial determinations.

This thesis has benefited from the extensive volume of literature that underpins the Australian historiographic and epistemological debates of the late 1990s and early 2000s. The most useful example of this is Curthoys, Genovese and Reilly.33 This book includes extensive discussion in relation to the challenges that native title claimants face, including those arising from the definition of native title itself, the incomplete nature of the archive, “settler history” complexities, and distinctions between the epistemological approaches between social scientists and the Courts. Those authors also provide a useful discussion in relation to their views on the divergent nature of inferential approaches taken by the Courts in various native title determinations.

Other works by Reilly34 and by Reilly and Genovese35 provide useful sources of material in relation to the effects of the historical record and the need to have regard to context and genre. This includes with regard to the approach of Black CJ in Members of the Yorta Yorta Aboriginal Community v State

30 Epstein, L. and G. King “The Rules of Inference” (2002) 69 U. Chi. L Rev. 1 31 Ibid, at 9 32 Ibid, at 13 33 Curthoys, A., A. Genovese and A. Reilly, Rights and Redemption - History, Law and Indigenous People, University of New South Wales Press, Sydney, 2008 34 Reilly, A. “The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title” (2000) 28 Federal Law Review 453; Reilly, A. “How Mabo Helps Us Forget” (2006) 6 Macquarie Law Journal 25 35 Reilly, A. and A. Genovese “Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence” (2004) 3 Indigenous L.J. 19

19 | P a g e of Victoria36 (Yorta Yorta FC) and Lee J in Ward v State of Western Australia37 38(Ward), in contrast to Olney J in Members of the Yorta Yorta Aboriginal Community v State of Victoria36 (Yorta Yorta), the majority in Yorta Yorta FC, and of the High Court in Yorta Yorta HC, as well as the need for the effects of a negative determination to be considered when applying the balance of probabilities standard.

Various other authors have made substantial contributions to this aspect of the matters the subject of this thesis. A number of books usefully each bring together the work of various authors on the topic. The first of these is edited by Attwood,39 which was published very early in the course of judicial acknowledgement of native title in Australia. The contributions to this work are from various prominent historians (including Henry Reynolds) and include discussions around perceived elevated standards of proof in the Courtroom over those exercised by social scientists, settler history, preconceptions regarding the traditional nature of indigenous people depending on their location, and the role of particular historians in influencing the thinking of the Court in early native title determinations.

The second of these is edited by Paul and Gray.40 This book includes contributions by various lawyers, historians and anthropologists who have participated in the native title process, and particularly focuses on the disparities and ethnocentrism of the archive, the greater need for contextual analysis of historical material in native title determinations in settled areas, and a broad ranging critique of the approaches to evidence taken in the various Yorta Yorta decisions.

McCalman and McGrath41 edited the third of these works. Again, this book includes contributions from various lawyers and historians who have participated in native title and land claims processes. These authors provide helpful insights into the respective roles of the expert witness and the Court in reaching conclusions of fact, various considerations regarding bias and advocacy amongst experts, unease of experts in the adversarial system, and various aspects of the challenges faced by native title claimants in the witness box.

The fourth of these works is edited by Choo and Hollbach,42 and includes contributions from historians, lawyers and traditional owners. This text includes an analysis of possible broader ways for experts to assist the Court, the lack of acknowledgement of power relations in the archive and the need for such sources to be read “against the grain,” a suggestion that experts called by the State were often guided by mainstream, rather than Aboriginal, views of history, and an analysis of the divergent approaches taken by Olney J in Yorta Yorta, to that of Lee J in Ward, and Black CJ in the minority in Yorta Yorta FC.

36 [2001] FCA 45 37 (1998) 159 ALR 483 38 [1998] FCA 1606 39 Attwood, B. (ed) In the Age of Mabo - History, Aborigines and Australia, Allen & Unwin, St Leonards, 1996 40 Paul, M. and G. Gray (eds), Through a Smoky Mirror- History and Native Title, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 2002 41 McCalman, I. and A. McGrath (eds), Proof and Truth - The Humanist as Expert, Australian Academy of Humanities, Canberra, 2003 42 Choo, C. and S Hollbach (eds), History & Native Title, University of Western Australia Centre for Western Australian History, 2003

20 | P a g e Fifthly, Toussaint43 edited a work that includes contributions from historians, anthropologists and lawyers (including current and future judges). This book similarly addresses evidentiary issues such as gaps in the archive and the need for such matters to be considered in context, and the potential emergence of the “professional witness” and associated issues of advocacy and bias. This work also makes an important contribution to various issues relevant to claimant oral evidence, including differing conceptions of time and space, and how expert and archival evidence may either corroborate and augment claimant oral evidence, or contradict it.

Finally, Attwood, Chakrabarty and Lomnitz44 edited a work that includes significant contributions particularly in relation to the role of remedial justice for indigenous people in national reconciliation, the role of the principle of contra proferentem in the interpretation of indigenous treaties, successful examples of variations to the adversarial system where indigenous people are called as witnesses, and how oral evidence affords the Court with multiple perspectives.

In addition to these works, Carter45 provides a very useful analysis of the role of historians in assisting the Court in inferential reasoning, and has conducted a similar assessment of the literature that underpins the relevant historiographic debates, ultimately concluding that “while some of it touches upon epistemological questions, it does not offer a rigorous analysis in terms of the proof of native title.”46 Ginzberg47 provides a useful analysis of the benefits historians may bring to the Courts generally in interpreting texts with regard to context. Palmer’s48 two works give useful insights into the methodologies and processes of anthropology and how this can be challenged in the trial system, particularly in relation to objectivity and interpretative techniques. Crispin49 provides a useful analysis of the issues that may impact on the accuracy and objectivity of expert witnesses generally, as well as how subjectivities may also impact on the arbiter of fact.

Various publications were relevant to the analysis of the reconciliation, national identity and legitimacy, knowledge preservation and public confidence drivers of the need to improve the judicial- historical endeavour. Osiel50 is perhaps the most prominent of these, including with specific reference to native title claims in Australia. Barkan51 also makes a significant contribution in this area, particularly in relation to national identity and legitimacy.

Surprisingly for an area which is widely acknowledged within the law, the cultural and linguistic issues in relation to claimant evidence are not the subject of a significant volume of material beyond this

43 Toussaint, S. (ed) Crossing Boundaries: Cultural, Legal, Historical and Practice Issues in Native Title, Melbourne University Press, Carlton, 2003 44 Attwood, B., D. Chakrabarty and C. Lomnitz Public Culture, “The Public Life of History” volume 20 no. 1, Duke University Press, New York, 2008 45 Carter, A. “The Definition and Discovery of Facts in Native Title: The Historian’s Contribution” [2008] FedLawRw 13 http://www.austlii.edu.au/au/iournals/FedLawRw/2008/13.html (accessed 25 November 2017) 46 Ibid 47 Ginzberg, C. "Checking the Evidence: The Judge and the Historian" (Autumn 1991) 18(1) Critical Inquiry 79 48 Palmer, K. “Anthropology and Applications for the Recognition of Native Title” (2007) 3(7) Land Rights, Laws: Issues of Native Title', Palmer, K. “Anthropologist as Expert in Native Title Cases in Australia” [2011 ] Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit 49 Crispin, K.J. “Of Auguries and Experts” International Institute of Forensic Studies Experts and Lawyers: Surviving in the Brave New World Conference, Broome, Western Australia, 16-19 October 2005 50 Osiel, M. Mass Atrocity, Collective Memory and the Law, Transaction Publishers, New Brunswick, 2000 51 Barkan, E. The Guilt of Nations - Restitution and Negotiating Historical Injustices, John Hopkins University Press, Baltimore, 2000

21 | P a g e topic’s discussion in the historiographic literature. The most useful sources are the various Bench Books, particularly from Queensland52 and New South Wales,53 and the Criminal Justice Commission’s 1996 report.54 The most prominent author in the area is Eades,55 whose work was drawn upon heavily in the preparation of these Bench Books. These sources all provide consistent and comprehensive information in relation to the considerations judges should take into account when considering the credit of indigenous witnesses. However, they do not extrapolate on this in relation to inferential reasoning, and these sources are not focused on the area of native title specifically.

Connolly56 provides very useful insights into some further considerations in this area, including in particular how the Court can adopt a greater cross-cultural interpretive ethos when assessing evidence. This involves both the judicial adoption of a culturally sympathetic mindset and approaches to leading evidence that are conducive to indigenous cultural sensitivities. Connolly applies these recommendations both to inferential reasoning and the native title process.

Notwithstanding the limited availability of sources in relation to theories of inferential reasoning by the Courts suggested by Epstein and King, a number of works proved useful in relation to judicial proceedings generally. Ligertwood and Edmond57 provide a succinct summation of Wigmorian approaches to inferential reasoning, as well as the need for vigilance for unavailable relevant evidence and matters which may unduly influence the decision maker in the inferential process. Similarly, Anderson, Schum and Twining58 flesh out the central concepts of the Wigmorian approach to inferential reasoning. Those authors also usefully delineate between inference and proof, distinguish the inferential processes in legal proceedings from other fields of endeavour, and provide an important tool for testing the validity of generalisations in the inferential process.

Works by Pardo,59 and by Pardo and Allen,60 usefully identify factors that drive inferential reasoning and relevant cautions for the inferential process in relation to missing evidence, as well as provide the most comprehensive assessment of explanation-based reasoning amongst the literature. Stein,61 whilst making a self-confessed non-orthodox approach which is critiqued as such by other contributors, also analyses the importance of consideration of missing evidence and the complexities posed by reliance on generalisations in the inferential reasoning process. That author in particular makes an important contribution with regard to considerations of efficiency and equality of apportionment of risk of error when drawing inferences.

Three particular sources were of assistance in relation to proof and procedure in native title determinations. Black CJ62 provides a useful early acknowledgement of the challenges faced by native

52 Supreme Court of Queensland, op cit 53 Judicial Commission of New South Wales, op cit 54 Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts, Goprint, Brisbane, June 1996 55 Eades, D. “Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications” (2008) 20(2) Current Issues in Criminal Justice 209 http://www.austlii.edu.au/au/iournals/CICrimJust/2008/26.html (accessed on 13 November 2017) 56 Connolly, A.J. Cultural Difference on Trial - The Nature and Limits of Judicial Understanding, Routledge, New York, 2016 57 Ligertwood, A and G. Edmond, Australian Evidence Law (5th edition), LexisNexis Butterworths, Chatswood, 2010 58 Anderson, T., D. Schum, and W. Twining, Analysis of Evidence (2nd ed) Cambridge University Press, Cambridge, 2005 59 Pardo, M.S. “The Political Morality of Evidence Law” (2007) 5(2) International Commentary on Evidence 3 60 Pardo, M.S. and R. J. Allen “Juridical Proof and the Best Explanation,” (May 2008) 27(3) Law and Philosophy 223 61 Stein, A. Foundations of Evidence Law, Oxford University Press, Oxford, 2005 62 Black, op cit

22 | P a g e title claimants and the complexities applicable to their evidence, and addresses the opportunities afforded to the native title processes by the alternative approaches to procedure and evidence under the various applicable statutes and rules. Neate in Horrigan and Young63 provides a comprehensive overview of the role of the various witnesses in native title trials, the matters they may attest to and the elements of native title these are directed at proving. Duff64 provides a comprehensive analysis of the proof requirements in native title, including areas where inferential reasoning is brought to bear, and some policy drivers for greater clarity of inferential reasoning, particularly where this can more greatly facilitate consent determinations.

In relation to general legal texts, both Bartlett65 and Heydon66 were invaluable to an understanding of native title and evidence respectively. Whilst Bartlett is the seminal text on developments in native title legislation and case law, that author also ventures into areas that critique the direction in which evidential requirements in native title is moving. He also provides an analysis of the difficulties posed by the definition of native title in the Native Title Act, and its application in the context of requirements of proof, which was particularly helpful context for some of the assumptions and opinions developed in this thesis.

Strelein67 also provides an important source of such information, particularly as it relates to more recent cases and how these do or don’t diverge from the oft-criticised approach in the various Yorta Yorta decisions, and the potential diminution of the value of inference principles adopted in native title cases because of further onerous requirements applicable to maintenance of connection prescribed in other case law.

63 Neate, G. “Proof of Native Title,” in Horrigan, B. and S. Young (eds), Commercial Implications of Native Title, Federation Press, Sydney, 1997 64 Duff, N. “What’s needed to prove native title? Finding flexibility within the law on connection" (June 2014) 35 Australian Institute of Aboriginal and Torres Strait Islander Studies Research Discussion Paper 65 Bartlett, op cit 66 Heydon. J.D. Cross on Evidence (11th Australian ed’n), LexisNexis Butterworths, Chatsworth, 2015 67 Strelein, L. Compromised Jurisprudence - Native title cases since Mabo (2nd ed), Aboriginal Studies Press, Canberra, 2009

23 | P a g e Chapter 1 - Proving native title

Overview of Chapter 1 The purpose of this Chapter is to provide the context of the native title claims process with regard to the key features of the Native Title Act and how the evidentiary processes operate under it. Part 1 of this Chapter sets out the key aspects of the Preamble and Objects provisions of the Native Title Act which are relevant to a beneficial interpretation of the operative provisions of the Native Title Act. Part 2 considers those aspects of the definition of native title which are central to the content and proof of native title, and the matters which a native title determination must address.

Part 3 addresses the types of witnesses called and other sources of evidence in native title claim hearings and what their evidence is generally directed at proving. Part 4 sets out an overview of the rules of evidence and procedure that are relevant to native title trials.

1. Preamble and Objects of the Native Title Act The Preamble to the Native Title Act states (inter alia) that Aboriginal peoples and Torres Strait Islanders:

have been progressively dispossessed of their lands, This dispossession occurred largely without compensation, and successive governments have failed to reach a lasting and equitable agreement with Aboriginal peoples and Torres Strait Islanders concerning the use of their lands.

As a consequence, Aboriginal peoples and Torres Strait Islanders have become, as a group, the most disadvantaged in Australian society.

The people of Australia intend:

(a) to rectify the consequences of past injustices by the special measures contained in this Act, ...for securing the adequate advancement and protection of Aboriginal peoples and Torres Strait Islanders; and

(b) to ensure that Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture, fully entitle them to aspire.

It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented.

24 | P a g e A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

The Objects of the Native Title Act are set out in s 3. Objects relevant to this thesis are to provide for the recognition and protection of native title, and to establish a mechanism for determining claims to native title.

The Preamble and Objects clause of the Native Title Act indicate that the Act has both a remedial character and beneficial purpose.68 This has been supported by the Courts on a number of occasions.69 And yet as further discussed particularly in Chapter 4, the challenges faced by claimants in the proof of native title has been observed to have frustrated this beneficial purpose.70

2. Native title proof - what this involves The starting point for what must be proven to be successful in a native title determination application is the definition of native title, set out in s 223 of the Native Title Act. This section (relevantly) provides as follows:

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

A successful native title claim requires each element to be separately satisfied.71 This statutory definition follows the language adopted by the High Court in Mabo, in particular that of Brennan J,72 who stated:

The term "native title" conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants. ... Native title has its origin in and is given its content by the traditional laws acknowledged by

68 Bartlett, op cit, at 155 -156 69 Lockhart J in Pareroultja v T/c/wer (1993) 42 FCR 32 at 44; 117 ALR 206 at 218; Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 per Lockhart, Lee and Sackville JJ 70 Bartlett, op cit, at 156, with reference to Chief Justice R French, “Rolling a Rock Uphill? - Native Title and the Myth of Sisyphus,” speech delivered to the Judicial Conference of Australia National Colloquium, 10 October 2008 71 Bodney v Bennell (2008) 167 FCR 84 72 Bartlett, op cit, at 148

25 I P a g e and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.73

The concepts of “traditional laws and customs” and “connection” are not defined in the Native Title Act.

As discussed in the Introduction and in Chapters 4 and 8, the implications of the definition of native title for proof of native title claims have been the subject of significant judicial interpretation, which in many respects has increased the difficulties involved in proving native title. The Commonwealth Attorney-General’s Department has summarised this in that “it must be established that the acknowledgment and observance of traditional laws and customs by a particular society has continued substantially uninterrupted since the time of the acquisition of sovereignty by the Crown.”74

The concept of continuity is complicated by the need for the Courts to consider what McRae and Nettheim et al describe as “[t]he degree of legally tolerable interruption to the observance of law and custom and to societal continuity, and ... [of] adaptation and change to the content of law and custom.”75

The challenges posed by such tests are central to the historiographic and other controversies discussed further in Chapter 4. Bartlett argues that onerous burdens and distortions by technical requirements of proof that are inconsistent with a principle of respect for existing rights has resulted from “a refusal to recognise that a society, if it exists, must necessarily have maintained such laws and customs, requirements of continued acknowledgement and observance, and the rejection of any presumption of continuance.”76

What a determination of native title must cover is dealt with in s 225 of the Native Title Act. This includes the identity of the persons who hold the native title; the nature and extent of the native title rights and interests, as well as other interests in the determination area and how these relate to each other; and where relevant, whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Such matters must be proven to the civil standard, namely on the balance of probabilities.77 This standard was described in the native title context by Mortimer J in Narrier v State of Western Australia78 (Narrier), who noted the distinction:

73 (1992) 175 CLR 1 at 57 and 58, cited by Olney J in Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 at [3] 74 Commonwealth Attorney General’s Department, Review of the Native Title Act 1993 by the Australian Law Reform Commission Scope of Review, at 3, https://www.aq.qov.au/Consultations/Documents/AustralianLawReformCommissionnativetitleinauirv/Review%20of%20the%20 Native%20Title%20Act%201993%20bv%20the%20Australian%20Law%20Reform%20Commission%20- %20scope%20of%20review.PDF (accessed on 6 August 2017) 75 McRae, H. and G. Nettheim et al, Indigenous Legal Issues (4th ed), Thomson Reuters, Pyrmont, 2009, at 348 76 Bartlett, op cit, at 147 77 Evidence Act 1995 (Cth) s 140(1); Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 196 and 198; Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 at [17]; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 [340]; CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [116] 78 [2016] FCA 1519

26 | P a g e between a court deciding, in an exercise of judicial power, that on the balance of probabilities certain events in the past did or did not occur, or certain circumstances did or did not exist, and a decision attended by some more absolute form of certainty which purports to declare absolutely that history ran its course in a particular way.79

The applicants bear “both an evidential onus of proof, and the ultimate onus, or burden, of proof” of the matters referred to in the Introduction, as well as “the ambit or content of the native title rights and interests.”80 This onus also ultimately extends to a lack of extinguishment of native title, in that “while a party asserting extinguishment on any basis carries a burden of adducing evidence sufficient to raise the issue for determination, the claimants will carry the ultimate or legal burden of establishing that their title has not been extinguished.”81 Put another way, “a respondent bears an evidentiary burden of proving the existence of its title and of the rights exercisable under it, while the burden of proving that those rights are not inconsistent with the claimed native title rights and interests, rests on the applicants.”82

3. Types of witnesses In Milirrpum v Nabalco Pty Ltd83 (Milirrpum), Blackburn J identified that in matters relating to traditional Aboriginal ownership, there are essentially “two kinds of witnesses, namely aboriginals ... and expert witnesses.”84 Subject to Neate’s appropriate correction of this subtle distinction, that “it would be strange to think of senior Aboriginal men and women as “inexpert” in their customary law while accepting as “expert” opinion evidence the views of non-Aboriginal observers,”85 this continues to be a reasonable summation of the key types of witnesses that appear in native title proceedings.

As considered further in Chapters 4 and 5, the primacy of claimant oral evidence in native title claims is the subject of significant debate and discussion. Callinan J held in Yorta Yorta HC that if “orally transmitted accounts” have “’’potential richness and strength” then those qualities will no doubt serve to meet, and if appropriate, refute contemporaneous written records to the contrary.”86 Thus the evidence of claim group members in relation to their traditional laws and customs has been held in numerous native title determinations to be “of the highest importance. All else is second order evidence.”87 However, there are important qualifications to this, such as the finding by Sundberg J in

70 Ibid, at [5] 80 Mabo v State of Queensland [1992] 1 Qd R 78 at 86; Mason v Tritton (1994) 34 NSWLR 572 at 582 - 584 and 590 per Kirby P and at 600 per Priestly JA; State of Western Australia v Ward [2000] FCA 191 at [114] - [118]; per Beaumont & Von Doussa JJ; Daniel v State of Western Australia [2003] FCA 666 at [146] - [148]; CG (Deceased) on behalf of the Badima People v State of Western Australia [2015] FCA 204 at [489] 81 Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 at [159] per Branson and Katz JJ 82 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [339], with reference to Daniel v State of Western Australia [2003] FCA 666 at [148] 83 (1971) 17 FLR 141 84 Ibid, at 153 85 Neate in Horrigan and Young, op cit, at 282 86 [292] HCA 58 at [190] 87 Yarmirr v Northern Territory of Australia (No. 2) (1998) 82 FCR 533 at [560]; De Rose v State of South Australia [2002] FCA 1342 at [318] and [351]; De Rose v State of South Australia [2003] FCAFC 286 at [264] - [265]; Sampi v State of Western Australia [2005] FCA 777 at [48]; Jango v Northern Territory [2006] FCA 318 at [287] - [288]; Sampi v State of Western Australia [2010] FCAFC 26 at [57]; Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No. 2) [2010] FCA 643 at [100]; Bularnu Waluwarra & Wangkayujuru People v State of Queensland (No. 3) [2014] FCA 528 at [149]; Narrier v State of Western Australia [2016] FCA 1519 at [318], Note also Lamer CJ’s judgment in Delgamuukw v British Columbia, (1997) 153 DLR (4th) 193 at [98] where His Honour held the approach taken by the trial judge,

27 | P a g e Neowarra v State of Western Australia88 (Neowarra), where His Honour held that where claimant oral evidence does not cover all of the matters the subject of expert evidence, this may deprive the claimant evidence of weight.89

More recently, Mortimer J in Narrier noted that “[n]o category of evidence starts with any presumptions of reliability, accuracy or superiority.”90 Her Honour also added that whilst the Court’s approach must be flexible to be able to draw inferences from the oral evidence of claimant witnesses, this is qualified by “the limits articulated by the Canadian Supreme Court in Mitchell, and being astute to ensure there is sufficient evidence for the discharge of the legal burden of proof.”91 In the Canadian Supreme Court case referred to by Her Honour, Mitchell v Minister for National Revenue,92 McLachlin CJ held “[tjhere is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules of evidence,” and that the appropriate:

approach does not operate to amplify the cogency of evidence adduced in support of an aboriginal claim. Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities. Placing “due weight’’ on the aboriginal perspective, or ensuring its supporting evidence an “equal footing” with more familiar forms of evidence, means precisely what these phrases suggest: equal and due treatment. While the evidence presented by aboriginal claimants should not be undervalued ... neither should it be artificially strained to carry more weight than it can reasonably support.93

Claimant oral evidence constitutes what Attwood calls “a conjunction between history and memory.”94 Oral history evidence is imperative given it is the only evidence available from the pre-contact societies to indicate what constitutes traditional law and custom. Oral or traditional evidence is therefore given in native title claims as proof of title to family land which vests through rights existing beyond living memory,95 and may include evidence of history, moral obligation, legend and mythology, religion, an organised society, personal assertion of descent, cultural artefacts and an explanation of their significance, customs, territory, traditions of family ownership and its acquisition, succession and divestiture, and boundaries to family lands.96

In State of Western Australia v Willis on behalf of the Pilki People97 the Full Federal Court summarised that claimant witnesses may give evidence of what the “laws and customs of the group’s

in giving no independent weight to oral histories on the basis of their perceived inaccuracies and insufficient detail, would if let stand “have the effect that the oral histories of aboriginal peoples would be consistently and systematically undervalued by the Canadian legal system. ” 88 [2003] FCA 1402 89 Ibid, at [41] 90 [2016] FCA 1519 at [404] 91 Ibid, at [323] 92 [2001] 1 SCR 911 93 Ibid, at [39] 04 Attwood, B. '"Learning about the truth' The stolen generations narrative,” in Attwood, B and F Magowan (eds), Telling Stories - Indigenous history and memory in Australia and New Zealand, Bridget Williams Books, Wellington, 2001, at 197 95 Ibid, at 275 96 Keon-Cohen, B.A. "Some Problems of Proof: The Admissibility of Traditional Evidence,” in Stephenson, M.A. and S. Ratnapala (eds), Mabo: A Judicial Revolution - The Aboriginal Land Rights Decision and Its Impact on Australian Law, University of Queensland Press, St Lucia, 1993, at 193 97 [2015] FCAFC 186

28 | P a g e predecessors were, usually by inference, at the time of sovereignty,” and how such laws and customs “constitute the “normative rules” ... which define the “society” which is governed by them.”98 *Such 100 evidence:

goes to activities that have been or are carried out by members of the claimant group - usually within the claim area (but not necessarily so) - which helps them to prove, often by inference, the laws and customs of the claimants and their predecessors. ... Evidence of social relationships, kinship rules, funereal practice, exercise of authority by elders and a range of other rules within a claimant group may [also] be the subject of oral evidence."

“Expert” evidence is generally given by anthropologists, historians, archaeologists, genealogists, linguists, and persons qualified in a combination of these and other disciplines. Anthropologists are the most commonly called upon experts in native title claims. Merkel J held in In Rubibi Community v State of Western Australia (No 5)m (Rubibi No 5), that such evidence "must be weighed in the context of the totality of the historical and ethnographic records, as well as the oral history provided by the local community.”101 Similarly, in Bennell v State of Western Australia™2 (Bennell), Wilcox J held that greater weight will be given to contested expert evidence, where the historical, anthropological, and Aboriginal oral evidence coalesce.103 Importantly for the purposes of this thesis, Mortimer J in Narrier held that “[inferential reasoning may operate on anthropological and ethnographic evidence and opinion, just as it may on the evidence of claimant witnesses.”104 The areas of assistance anthropological experts give includes:

• The provision of an overview of the society and opinion on the existence or otherwise of laws and customs governing behaviour, including genealogies of groups of Aboriginal people from earlier researchers or archival records, the nature and identities of groups, sub-groups or communities of Aboriginal people, and how the name of a group came to be established.

• The extent of a group’s traditional country, the location of significant sites, the use and significance of land by and for Aboriginal people, the significance of ceremony and ritual to a group’s traditional links to particular areas, and the period of occupation of an area with reference to carbon dating and archaeological information.

• Whether laws and customs relied upon are traditional, namely a normative system which has continued uninterrupted since sovereignty, the rights and duties of people to land acknowledged under traditional law and custom, the right of a claim member to take bush resources within and beyond the clan’s estate, the extent to which traditional knowledge, laws, customs and practice continue, and the likely consequences for a group if certain types of traditional information is disclosed beyond the group.

98 Ibid, at [166] "Ibid, at 168 100 [2005] FCA 1025 101 Ibid, at [52] 102 [2006] FCA 1243 103 Ibid, at [789] 104 [2016] FCA 1519, at [391]

29 | P a g e • The drawing of inferences and formation of opinions regarding continuity of the system and its observance, with reference to what may be scant evidence over 200 years, including historical sources and comparative analysis.

• In some cases, rather than opinion evidence, direct, primary evidence of facts in relation to the claimant group based on a long term association and experience.105 106 107

Neate describes the role of the anthropologist in native title claims as:

providing information about the relevant group(s) and the nature of their traditional links to land and providing expert opinions by way of analysis of the available data ...by way of a written report or by giving oral evidence ... [which is] not only of interest and use in itself, but it also provides a contextual background against which the testimony of the applicants’ witnesses can be better understood.™6

Mansfield J in Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia™7 (Alyawarr) recognised three roles for anthropological evidence in native title claims. Firstly, to “observe and record matters relevant to informing the court as to the social organisation of an applicant claim group, and as to the nature and content of their traditional laws and traditional customs.” Secondly, “by reference to ... historical literature and anthropological material, the anthropologists “may compare that social organisation with the nature and content of the traditional laws and traditional customs of their ancestors and to interpret the similarities or differences.” Finally, the anthropologist may give evidence about the meaning and significance of what Aboriginal witnesses say and do, so as to explain or render coherent matters which, on their face, may be incomplete or unclear.”108 Similarly in CG (Deceased) on behalf of the Badimia People v State of Western Australia™9 (Badimia), Barker J held that anthropological evidence assists the Court to see more clearly ethnographic data which is otherwise viewed “through a lens misted over by time.”110

It is common for both anthropologists and historians to present historical evidence in native title proceedings. Selway has suggested that in litigation generally, “[t]he use of... history, as an aspect of legal reasoning is so pervasive that most of the time it is not even realised that it has occurred.”111 Historically-based evidence is received by the Courts as either the evidence of witnesses, judicial notice of “matters of common knowledge,” or judicial “absorption of legislative facts” (being facts related to questions of law or policy)112 (as discussed further below). In native title matters specifically, one former Federal Court judge acknowledges these are “first and foremost, exercises in historical fact finding.”113 Like anthropological evidence, the subject of historical enquiry is directed at the

105 Neate, G. “Management of native title cases by the Federal Court - does this affect the anthropologist’s role?” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 11 to 12 106 Neate (2001), op cit, at 3 - 4 107 [2004] FCA 472 at [89] 108 Ibid, at [89]; referred to in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [478] 109 [2015] FCA 204 110 Ibid, at [119] 111 Selway, B. “The Use of History and Other Facts in the Reasoning of the High Court of Australia” (2001) 20(2) University of Tasmania Law Review 130 at 148 112 Van Krieken, R. "Law's Autonomy in Action: Anthropology and History in Court” (2006) 15 Social and Legal Studies 574 at 579 113 Finn, P. “Law and History in Four Parts” [2005] ANZLH E-Journal 239241

30 | P a g e matters required by the Courts to satisfy the native title definition in s 223 of the Native Title Act, and include the following:

• Proof of an identified group and descent from that group.

• Content of traditional laws and customs, and continued connection to land and waters through their ongoing practice.

• Local or linguistic group boundaries, and whether occupation within those boundaries was permanent or transient.

• Ceremonial sites.

• Indigenous place names and vocabularies.

• Genealogical data such as birth dates and places of ancestors.

• Activities carried out on the land since the assertion of sovereignty.

• Contact between Aboriginal and non-Aboriginal people in the claim area and impact of European occupation.

• Whether claimants' ancestors have moved beyond the claim area region.114

Carter has identified two stages of inferential proof that historians may assist the Court in, namely “historians’ tendency to take a broad ‘historical snapshot’ [which] may influence how courts assess what evidence is considered relevant” and “historians’ experience in interpreting the colonial archive [which] may inform the types of inferences that can reasonably be drawn.”115 Historical material is central to the evidence of both those pursing native title claims and those responding to them. As Reilly and Genovese point out, for those opposing a determination that native title exists “the historical record is used to testify to the extent of the encroachment of European lives upon the lives of the ancestors of the claimants.”116

An additional source for the introduction of facts into evidence in determinations of native title claims is the concept of judicial notice, whereby the Court can have regard to facts which are within the judge’s own knowledge and are accepted as notorious, commonly known or indisputable. Section 144 of the Evidence Act 1995 (Cth) (Evidence Act) provides that proof is not required about knowledge that is not reasonably open to question and is common knowledge. In these circumstances, the judge may acquire knowledge of that kind in any way the judge thinks fit, and the court is to take knowledge

114 Neate in Horrigan. and Young, op cit, at 312; Choo, C and M. O’Connell “Historical Narrative and Proof of Native Title” in Paul and Gray, op cit, at 12; Choo, C. and S. Hollbach, “The Role of the Historian in Native Title Litigation” (1999) 4(17) Indigenous Law Bulletin 7 at 7; Dreyfus, M. “Historians in Court,” in McCalman and McGrath, op cit, at 77; Gara, T. “History, Anthropology and Native Title” in Paul and Gray, op cit, at 73 - 74; Finn, op cit. Neate has summarised the primary sources that experts interpret and report upon in relation to these matters, as including journals and reports of European explorers, scientists and surveyors; diaries and journals of pastoralists or police officers; official reports of government officials such as native protectors; official correspondence between government officials and government reports; Court records; private correspondence; reports, theses, journal articles and books by anthropologist, historians, linguists and other social scientists; district histories prepared by local historical societies; records of local missions or missionary societies; company employment records; travel books, newspapers and popular magazines; and photographs, films and object in museum collections - Neate in Horrigan and Young, op cit, at 312 - 313 115 Carter, op cit 116 Reilly and Genovese, op cit, at 24

31 I P a g e of that kind into account. The application of this was noted by Lee J in Ward, where His Honour stated “[i]n addition to taking judicial notice of the facts of history, whether past or contemporaneous, the court, of course was entitled to rely on its own historical knowledge and research.”117

Various other examples of the exercise of judicial notice have been identified throughout the native title case law, perhaps most notably the judgment of Deane and Gaudron JJ in Mabo, wherein Their Honours noted that they had “been assisted not only by the material placed before us by the parties but by the research of many scholars who have written in the areas into which this judgment has necessarily ventured.”118 The influence of the broader scholarship on Deane and Gaudron JJ was reinforced subsequently by Dean J having written to Henry Reynolds enclosing a copy of the Mabo judgment, and drawing his attention to the page on which Reynolds’ works were footnoted.119

4. The Rules of Evidence and Procedure The starting point for evidence in native title determinations is s 82(1) of the Native Title Act, which currently provides that the Federal Court is bound by the rules of evidence, except to the extent it orders otherwise. This is in contrast to the section before it was amended in 1998, which provided that the Court is not bound by the rules of evidence. The current s 82(1) is qualified in s 82(2) of the Native Title Act, which provides that the Court may take account of the cultural and customary concerns of Aboriginal and Torres Strait Islander peoples, but not so as to prejudice unduly any other party to the proceedings. This qualification is consistent with the finding Lee J stated in Ward, prior to the amendment of the Native Title Act, that “rules of evidence applied to the proceeding must be cognisant of the evidentiary difficulties faced by Aboriginal people in presenting such claims for adjudication and the evidence adduced must be interpreted in the same spirit.”120 121

In relation to the application of s 82(1) of the Native Title Act, RD Nicholson J held in Daniels v State of Western Australia^ (Daniels) that dispensing with the rules of evidence would require some factor for the court to otherwise order.122 Perry and Lloyd suggest that such factors include the weighing of such cultural or customary concerns “against the prejudice produced to other parties,” as well as any delay in making the application to dispense with the rules of evidence which might prejudice another party, and in the cases of restrictions on access to evidence, “the extent of the restrictions sought and

117 (1998) 159 ALR 483 at 496 118 [1992] HCA 23 at [53], [54] and [78] per Deane and Gaudron JJ, [41] per Dawson J and [18] perToohey J. See also Former Chief Justice Sir Anthony Mason, quoted in Hope, D. “Smokescreen nullius,” Weekend Australian, 25 - 26 February 2006, at Inquirer 22. Other examples include Wik Peoples v State of Queensland (1996) 141 ALR 129 per Toohey J at 170 and Kirby J at footnote 573. The influence of Reynolds work on the High Court in Wik was summarised by Beaumont J in Anderson v Wilson [2000] FCA 394 at [290]. 119 Reynolds, H. “Among Historians,” Race, Nation, History Conference, National Library of Australia, Canberra, 30 August 2008 120 (1998) 159 ALR 483 at 504 121 [2000] FCA 858 122 Ibid, at [39]; See also Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 at [15]; Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 at [7] and [28]; Sampi v State of Western Australia (No 2) [2001] FCA 620 at [6]; Wilkes i/ State of Western Australia [2003] FCA 156 at [10]; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [7] - [15], [19] and [27]; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 8) [2004] FCA 338 at [82] and [83]; and Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 at [19] and [20],

32 | P a g e whether the evidence sought to be restricted is likely to comprise a substantial or significant part of the evidence.”123

Whilst the cases suggest there is limited judicial appetite to dispense with the rules of evidence in native title matters, as Black CJ noted, “the rules of evidence are themselves quite flexible ... The court’s rules also allow for considerable flexibility.”124 Such matters, including amendments that introduced even greater flexibility subsequent to these comments by Black CJ, are discussed further below. Notwithstanding this, Gleeson CJ, Gummow and Hayne JJ noted in Yorta Yorta HCthat “a rather broader base could be built for drawing inferences about past practices” under the pre­ amended s 82, given its reference to “providing a mechanism of determination that is fair, just, economical, informal and prompt.”125

In the context of the types of witnesses that generally give evidence in native title claims, there are two exclusionary rules of evidence and a number of exceptions to those rules that are relevant. Unchecked, the exclusionary rules would pose substantial impediments to the admissibility of evidence necessary for native title claimants to make their case.

In relation to claim group member oral evidence of traditional laws and customs passed down from generation to generation through the word-of-mouth transmission of knowledge, the rule in s 59 of the Evidence Act would ordinarily be relevant. This section provides that evidence of a previous representation made by a person is not admissible to prove the existence of a fact that can reasonably be supposed that the person intended to assert by the representation (the Hearsay Rule).

However, there are three relevant exceptions to the Hearsay Rule. Firstly and secondly, there are the general exceptions in s 73 and s 74 of the Evidence Act, in relation to evidence of reputation concerning family history or a family relationship, and evidence of reputation concerning the existence, nature or extent of a public or general right respectively. Thirdly, there is a specific exception in s 72 of the Evidence Act which provides that the Hearsay Rule does not apply to evidence of a representation about the existence or non-existence, or the content, of the traditional laws and customs of an Aboriginal or Torres Strait Islander group.

Section 76 of the Evidence Act provides that evidence of an opinion is not admissible to prove the existence of a fact about which the opinion was expressed (the Opinion Rule). However, there are exceptions in relation to the Opinion Rule for both claim group member oral evidence and expert evidence. Opinions expressed by a member of an Aboriginal or Torres Strait Islander group about the existence or non-existence, or the content, of the traditional laws and customs of the group are exempt from the Opinion Rule under s 78A of the Evidence Act. Similarly, s 79 of the Evidence Act

123 Perry, M. and S Lloyd, Australian Native Title Law, Law Book Company, Pyrmont, 2003 at 496 124 Black, op cit, at 21. See for example the approaches of Cooper J in Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548 at [28] and Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [39], wherein the Court treated hearsay statements in anthropological reports as going to weight rather than requiring the relevant people to attend and give testimony. 125 [2002] HCA 58 at [81], referred to by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [337] where His Honour noted “[i]n amending s 82 to provide that the Court is bound by the rules of evidence, except to the extent that the Court otherwise orders, Parliament may have narrowed the potential basis for the drawing of inferences about past practices.”

33 | P a g e exempts from exclusion under the Opinion Rule opinions of a person that is wholly or substantially founded on specialised knowledge based on that person’s training, study or experience.

Sections 72 and 78A of the Evidence Act have application in relation to native title proceedings that commence after the commencement of these provisions on 1 January 2009. However, s 214 of the Native Title Act allows the parties to consent to the application of these provisions or for the Court to order that these provisions apply, where it is in the interests of justice that these provisions apply, in relation to all native title proceedings.

The Federal Court Rules 2011 (Cth) (FCR) make various provisions in relation to the reception of evidence generally and specifically to native title. In relation to experts, the FCR provides for:

• Court appointed experts, who are appointed by order of the Court on application by a party, to inquire into and report on any question of facts relevant to any question arising in a proceeding. A Court appointed expert must provide a report to the Court which will be admissible as evidence at trial, and the expert may be subject to cross-examination on application by a party.126

• A requirement that an expert called to give evidence must deliver an expert report which complies with certain requirements, including particulars of their training, study or experience by which they have acquired their specialised knowledge and confirmation that the expert’s opinion is based on that specialised knowledge; and each of the factual findings or assumptions on which the expert’s opinion is based, separate from the expert’s opinions, and the reasons for the opinions (such requirements also apply to reports by Court appointed experts).127

• Where experts are intended to be called by multiple parties, various ways in which the experts go about their functions, including (on application by a party) orders by the Court that experts confer before or after writing their reports; that the experts produce a document identifying where their opinions align or differ; that all relevant factual evidence be adduced prior to the expert giving evidence, and on completion of such evidence, the experts swear affidavit material as to whether the expert adheres to their previous opinion or a different opinion and the factual evidence on which such a different opinion is based; that the experts give evidence consecutively or alternatively be sworn in concurrently and be cross-examined and re-examined by putting to each expert in turn each question relevant to one subject or issue at a time; that experts opine on the others’ opinions; and that the experts be cross- examined and re-examined in any particular manner or sequence.128

Combinations of expert conferences and concurrent expert evidence, known as the “Hot Tub” method, have been adopted in the Federal Court and in other jurisdictions. The benefits of this approach is in overcoming potential bias or partisanship amongst experts; avoiding differences

126 Federal Court Rules 2011 (Cth) 23.01 - 23.03 127 Ibid 23.11 and 23.14 128 Ibid 23.15

34 | P a g e between experts leading to entrenched positions; ensuring matters the subject of evidence are within the witness’ expertise; simplification of highly technical issues; and mitigating the limitations the adversarial system places on a witnesses’ ability to assist the Court to assess competing opinions.129

Hughston and Jowett explain the benefit of such an approach as follows:

The hot tub method can serve to narrow the issues to those genuinely in dispute and can facilitate intelligent and relevant consideration of expert opinion evidence. The approach enables experts to explain their reasoning alongside a professional colleague, minimising the chance that their evidence will be misunderstood or misconstrued. The judge and other listeners have the benefit of multiple advisers who are ‘rigorously examined in public’. This may mean that experts are more likely to focus on assisting the court to understand the substance of the points at issue, rather than resorting to defending themselves and their opinions and perhaps deflecting or straying from the issues. Another possible benefit of experts appearing together is that they may be compelled to be more precise and accurate.130

The provisions of the FCR that are specific to native title claims provide that the rules of evidence apply to native title proceedings subject to other provisions of the relevant division.131 Other aspects of these provisions include the following:

• A party may apply to the Court for an order restricting access to transcripts or contents of pleadings or other Court documents, or relating to the matter of presenting evidence, the time and place where certain evidence is to be taken, the manner of identifying and referring to evidence about specified subject matters, and relating to evidence about a cultural or customary subject.132

• A party may by interlocutory application seek an order of the Court to take into account the cultural or customary nature of a party or another person.133

• Provision is made for the giving of evidence, by way of singing, dancing, storytelling or in any way other than in the normal course of giving evidence,134 for evidence in the form of statements from a group of witnesses or a witness after that witness has consulted with other persons,135 for evidence given at a time other than when the evidence would usually be

129 Hughston, V. and T. Jowett “In the native title ‘hot tub’: expert conferences and concurrent expert evidence in native title,” (August 2014) 6(1) Land, Rights, Laws: Issues of Native Title at 2 to 3; Farrell, R. 'Hot Tubbing’ anthropological evidence in native title mediations, National Native Title Tribunal Research Unit, June 2007, at 15; Rares, S. “Using the “Hot Tub” - How Concurrent Expert Evidence Aids Understanding Issues” Judicial Conference of Australia Colloquium, 12 October 2013 at 2 to 3. Examples of the use of this method include in Gumana v Northern Territory of Australia [2005] FCA 50; Yankunytjatjara/Antakirinja Native Title Claim Group v State of South Australia [2006] FCA 1142; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 3) [2010] FCA 1455; AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268; Graham on behalf of the Ngadju People v State of Western Australia [2012] FCA 1455; Banjima People v State of Western Australia (No 2) [2013] FCA 868; Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229; and CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 130 Hughston and Jowett, op cit, at 9 131 Federal Court Rules 2011 (Cth) 34.120(1) 132 Ibid, 34.120(2) 133 Ibid, 34.121 134 Ibid, 34.123 135 Ibid, 34.125

35 | P a g e given,136 and for inspections of a place and consequential orders dealing with the associated logistics.137

• Orders may be made for the appointment of an assessor to take evidence from a party, to decide how the evidence is to be recorded and to prepare a report of the evidence for the Court.138 139

• Various safeguards are provided for in relation to evidence that refers to material of a cultural or customary nature that a party calls that is of a confidential or secret nature.130

In relation to these matters, Black CJ has identified the following common reasons why claimants might seek orders restricting the hearing and publication of evidence:

• where matters under customary law are specific to one gender, it would be inappropriate to speak about them in front of the other gender; and

• recording or transcribing evidence for others to read may be contrary to customary law, which dictates that such matters be spoken of only in the presence of the listener.140

In addition, the Federal Court of Australia Act 1976 (Cth) (FCA) makes general provisions in relation to safeguards relevant to native title trials. Section 17(4) of the FCA provides that the Court may order the exclusion of the public or of persons specified from a sitting of the Court where it is satisfied that the presence of the public or of those persons would be contrary to the interests of justice. These include the Court may make a suppression or non-publication order in relation to information that comprises evidence or information about evidence,141 and may do so if the order is necessary to prevent prejudice to the proper administration of justice.142

Various other sections of the Evidence Act are also relevant to the way native title determination hearings may be conducted. The Court may make such orders as it considers just in relation to the way in which witnesses are to be questioned, and the presence and behaviour of any person in connection with the questioning of witnesses,143 and the Court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.144

The approach of the Court in the hearing for Ward included a number of examples of the use of these various measures. As summarised in Lee J’s judgment, this included on country hearings and informality of proceedings as much as possible; views and inspections of landmarks, artefacts and traditional activities and ceremonies; gender restrictions in relation to the audience for testimony and access to records; and judicial consciousness of and vigilance for the complexities posed by

136 Ibid, 34.126 137 Ibid, 34.127 138 Ibid, 34.128; Native Title Act 1993 (Cth) s 83 139 Federal Court Rules 2011 (Cth) 34.122, 34.123 and 34.124 140 Black, op cit, at 23 141 Federal Court of Australia Act 1976 (Cth) s 37AF 142 Ibid, s 37AG 143 Evidence Act 1995 (Cth) s 26 144 Ibid, s 29(2)

36 | P a g e difference in language, nuance and gestures and comprehension of process in a question and answer setting.145

Finally, s 138B of the Native Title Act makes provision for the National Native Title Tribunal (NNTT) to hold an inquiry in relation to a matter or an issue relevant to the determination of native title under s 225, on the direction of the Federal Court (whether on its own motion, or at the request of a party to the proceeding or a person conducting a mediation). This power applies where the Federal Court has referred the whole or a part of a proceeding for mediation and the proceedings, in whole or in part, raises a matter or an issue relevant to the determination of native title.146

In conducting the inquiry, the NNTT may receive into evidence the transcript and adopt any report, findings, decision, determination or judgment of any court, person or body,147 may direct the holding of conferences of the parties and their representatives to help resolve any relevant matter148 and may hold hearings149 at which a party has a right to appear.150 Hearings must be held in private unless the NNTT is satisfied it is appropriate to do otherwise (having regard to the cultural and customary concerns of Aboriginal and Torres Strait Islander people).151 Parties may call witnesses before the inquiry and the witnesses may be examined, but not cross-examined or re-examined without leave of the NNTT.152 Once an inquiry is held, the NNTT must report to the Federal Court about the matters or issues covered by the inquiry, including non-binding recommendations, and which must state any findings of fact upon which the report is based.153 As at the date of this thesis, only one such inquiry has been carried out by the NNTT, in relation to whether certain people should be included in the claim group description for the Gaangalu Nation People claim (QUD4000/2012).

5. Conclusion to Chapter 1 This Chapter provided the context of the native title claims process with regard to the key features of the Native Title Act and how the evidentiary processes operate under it, including the Preamble and Objects provisions of the Act, the definition of native title and the proof requirements drawn from it, the matters which a native title determination must address, the types of witnesses and other evidence relevant to native title claim hearings, and the rules of evidence and procedure that are relevant to native title trials.

The acknowledgment in the Preamble to the Native Title Act of the need for a special procedure for the just and proper ascertainment of native title, in a manner that has due regard for the unique character of native title rights and interests, poses strong encouragement for the development of Inference Guidelines Courts to assist the Court in delivering on the beneficial intent of the Act. The challenges acknowledged by the Courts and elsewhere in relation to proof of native title arising from

145 (1998) 159 ALR 483 at 497 146 Native Title Act 1993 (Cth) s 138A 147 Ibid, s 146 148lbid,s 150(1) 149 Ibid, s 151(1) 150 Ibid, s 152 151 Ibid, s 154A(1), (3) and (5) 152 Ibid, s 156(3). (4) and (5) 153 Ibid, s 163A

37 | P a g e the interpretation of its statutory definition is also strong grounds for Inference Guidelines to be developed to mitigate relevant challenges. These are foundational issues for consideration in the answer to Research Question 1, regarding what gives rise to the inference imperative in native title claims and which are developed across the remainder of this thesis.

Similarly, complications in relation to different types of evidence, and their inter-relationship, demand guidance around how the Court’s ultimate inferential process should be applied to them. These complexities may also be mitigated by the uptake of the various provisions which empower the Court to adopt alternative evidentiary and procedural approaches to the fact-finding processes, to alleviate difficulties posed by expert and claim group member oral evidence, and assist the Court in its overall inferential reasoning which might otherwise be impaired by such complexities.

These matters form key bases for many of the previous calls for and attempts at reform of the native title connection requirements, and the relevant recommendations in the ALRC Connection Report, which are the subject of Chapter 2.

38 | P a g e Chapter 2 - The ALRC reform proposals and their drivers

Overview of Chapter 2 The purpose of this Chapter is to identify the key ALRC Connection Report recommendations and previous calls for or attempts at reform which are central to the issues the subject of this thesis.

Part 1 of this Chapter provides an overview of previous calls for reform directed at alleviating the challenges faced by native title claimants in satisfying the evidentiary onus regarding maintenance of connection. Parts 2 and 3 then set out how the concepts the subject of Part 1 were sought to be implemented, ultimately unsuccessfully, in previous attempts at legislative reform.

Part 4 of this Chapter sets out the background and terms of reference for the ALRC inquiry, which is followed in Part 5 with details of specific reforms proposed by the ALRC relevant to this thesis.

1. Eminent persons' calls for reform The factual difficulties involved in prosecuting native title claims have been evident in various reviews and public commentary, dating back well before the ALRC reform proposals.154 Prior to the ALRC reform proposals, significant public commentary by then High Court Chief Justice Robert French and former Prime Minister Paul Keating, who both called for a reversal of the onus of proof in native title claims, brought the evidentiary difficulties confronting native title claimants squarely into the public eye.

Then Chief Justice French, when speaking at the Native Title Users Group in Adelaide in July 2008, noted the difficulties of proof faced by native title claimants, and said that the relevant requirements “impose the burden of determining continuity of existence of their native title rights and interests upon the applicants at least by inference or extrapolation from various kinds of evidence.”155 However, His Honour appears to consider the use of inference or extrapolation in whatever form to be inadequate to the task, and calls for amendments to the Native Title Act to “provide for a presumption in favour of the existence of native title rights and interests if certain conditions are satisfied.”156 He then suggests:

A fact sufficient to engage such a presumption might be that the native title claim group acknowledges laws and observes customs which members of the group reasonably believe to be, or to have been, traditional laws and customs acknowledged and observed by their ancestors. And if by those laws and customs the people have a connection with the land or

154 For example, Hiley, G. RFD QC and Dr K Levy RFD, Native Title Claims Resolution Review, prepared for the Attorney- General in response to the Terms of Reference for the “Review of the claims resolution process in the native title system,” 31 March 2006 at 18 155 French, R. "Lifting the burden of native title some modest proposals for improvement" [2008] FedJSchol 18, http://www.austlii.edu.au/au/iournals/FedJSchol/2008/18.html (accessed 6 August 2017) 156 Ibid

39 | P a g e waters today ... then a continuity of that connection, since sovereignty, might also be presumed. Such a presumption would enable the parties, if it were not to be challenged, to disregard a substantial interruption in continuity of acknowledgment and observance of traditional laws and customs ... unless and until proof of such interruption was established.

His Honour then sets out a useful summary of how such a presumption is distinct from mere inference, in that in contrast to a platform for mere inference, the presumption must be “robust enough” so as not to “collapse upon the introduction of evidence to the contrary whatever its probative value.”157

He concludes his discussion with a suggested provision for inclusion in the Native Title Act to effect the presumption. The presumption is to apply where the rights and interests are found to be possessed under laws acknowledged and customs observed by the native title claim group who has made the application; and that claim group reasonably believes those laws and customs are traditional and have a connection with the land or waters by virtue of their laws and customs; and they reasonably believe that their ancestors acknowledged and observed traditional laws and customs at sovereignty by which those persons had a connection with the land or waters the subject of the application. Where these criteria are satisfied, in the absence of proof to the contrary, it will be presumed that the requirements for the laws and customs to be traditional and those acknowledged and observed at sovereignty, and that by those the claim group has a connection with the claim area, are satisfied. Further, provided the asserted native title rights and interests are capable of recognition by the common law, the facts necessary for their recognition by the common law are established.158

In delivering the Lowitja O’Donoghue Oration at the University of Adelaide in 2011, former Prime Minister Keating noted that:

native title should not be viewed as some museum-like strain of law which, snap frozen, requires defrosting around anthropological principles, documentary records that rarely exist, if they ever existed and an onus of proof built within rules of evidence which are calibrated so as never being able to helpfully apply.'59

Keating noted the high onus on claimants arises from the proof of continuity requirements, which must draw on anthropological, archaeological, historical and oral evidence of the maintenance of group customary traditions, all the while notwithstanding “the rupture of European settlement had an atomising effect upon Aboriginal society as a whole and on particular groups.”160 Keating claims it was the intention of his Government “that native title be determined by the common law principles laid out in Mabo,”161 in contrast to what has occurred in subsequent cases such as in Yorta Yorta, where “the trial judge substantially lifted the bar on the whole issue of continuity”162 and in turn:

157 Ibid 158 Ibid 159 Keating, P. “Time to Revisit Native Title Laws” in Bauman T and L Click (eds), The Limits of Change: Mabo and Native Title 20 Years On, AIATSIS Research Publications, Canberra, 2012, page 412 160 Ibid, at 413 161 Ibid, at 411 162 Ibid, at 414

40 | P a g e placed an unjust burden on those native title claimants who have suffered the most severe dispossession and social disruption. It has substantially slowed the redress by Aboriginal people to adequate recognition of their rights in respect of land, water and other natural resources.163

Elsewhere Keating has stated that as the “test for proving continuity relied on “written traditions” and was at odds with the “oral traditions” of Aboriginal people,” there was a desperate need for amendments to the Native Title Act “so Aboriginal claimants no longer have to prove a continuous association with their land.”164

Reversal of the onus of proof on continuity of connection has received support in other quarters, such as from the National Native Title Council CEO Brian Wyatt,165 and from Justice North and Tim Goodwin who have suggested an alternative basis to trigger such a reversal of the onus, as follows:

Applicants would need to show that there were Indigenous people at sovereignty occupying the land in question according to traditional laws and customs. The onus would then shift to the respondents to demonstrate that the other requirements of the Yorta Yorta test do not exist.166

The shifting of the burden to State and Territory parties to rebut the presumption through proof of substantial interruption of connection is supported by Tom Calma, the Aboriginal and Torres Strait Islander Social Justice Commissioner, on the grounds of evidentiary convenience:

In most cases the government party would presumably take on the role of adducing evidence to rebut the relevant presumptions. In my view, this is appropriate. Government parties typically hold a lot of information relevant to the claim. Governments are also better resourced than native title claimants. Significantly, governments are responsible for dispossession.167

Tony McAvoy SC in evidence before the Senate Standing Committee on Legal and Constitutional Affairs, stated similarly:

The evidence which traditional owners inevitably have to rely upon for that period which is beyond the living memory of traditional owners comes from the government. That material is often in the hands of the government or government functionaries ... The state has the resources and the capacity to look at the material itself. If it wants to challenge the continuity

163 Ibid, at 415 164 Keating P, quoted in Cormack, B, “PM missed native title chance: Keating,” The Australian, 25 February 2013 http://www.theaustralian.com.au/national-affairs/indiaenous/pm-missed-native-title-chance-keatinq/news- Storv/77c649885e9e2c51990b493c73c2205a (accessed on 6 August 2017) 165 Karvelas, P, “Julia Gillard has missed a 'golden opportunity' to reform native title, indigenous leaders say,” The Weekend Australian, 6 June 2012, http://www.theaustralian.com.au/national-affairs/indiqenous/iulia-qillard-has-missed-a-qolden- opportunitv-to-reform-native-title-indiqenous-leaders-sav/news-storv/563cbb7e15df13a2300dbcc1ffe106e6 (accessed 6 August 2017) 166 North, Justice A.M. and T. Goodwin, “Disconnection - the Gap between Law and Justice in Native Title: A Proposal for Reform” 10th Annual Native Title Conference, Melbourne, 4 June 2009 at 14. 167 Aboriginal and Torres Strait Islander Social Justice Commissioner, 2009 Native Title Report, Australian Human Rights Commission, Sydney, 2009, at 81 https://www.humanriqhts.qov.au/sites/default/files/content/social iustice/nt report/ntreport09/pdf/ntr ch3.pdf (accessed on 6 August 2017)

41 [Page of particular people’s connection then let them do so. Let them access their own material and do so.188

Other calls are directed at “interpretive reform,” namely “facilitating the judicial interpretation of testimonial evidence about culturally different concepts, the judicial acquisition of such concepts and the judicial understanding of culturally different actions implicating such concepts.”168169 Connolly suggests the aim of such reforms would be to ensure “the norms regulating the legal process be reformed in a manner oriented towards both the reduction of the degree of relevant conceptual differences between judge and culturally different actions” at the outset of a trial and “the cultivation of interpretively and concept-acquisitively conducive epistemic conditions over the course of such hearings.”170 These reforms are directed at alleviating the challenges faced by claimant witnesses identified in Chapter 5, including the enhanced use of a number of the evidentiary and procedural measures already available to the Courts and identified in Part 4 of Chapter 1.

2. Native Title Amendment (Reform) Bill 2011 Attempts were made unsuccessfully in 2011/2012 by the Australian Greens Party to amend the Native Title Act and introduce a presumption of continuity. In the explanatory memorandum for the Native Title Amendment (Reform) Bill 2011 (Cth), it was noted:

It is widely recognised that the evidential burden of proving native title is significant and indeed so significant as to arguably undermine the purpose and intent of the Native Title Act. The United Nations Committee on the Elimination of Racial Discrimination has noted this issue recognising that the high standard of proof required has the consequence that many indigenous peoples are unable to obtain recognition of their relationship with their traditional lands.171

In that Bill, Chief Justice French’s proposed provision was to a significant extent sought to be adopted verbatim, but with additional provisions clarifying what will, and what will not, be relevant to set aside the presumption. Namely, the presumption may be set aside upon evidence of a substantial interruption in the acknowledgment of the traditional laws or the observation of those traditional customs. However in considering such evidence, the Court must have regard to whether the primary reason for such a demonstrated interruption or significant change to such laws and customs acknowledged and observed is the action of a State or Territory or a non-Aboriginal or Torres Strait Islander person.172

The Bill also sought to introduce amendments to the section of the Native Title Act which defines native title, relating to change in traditional laws and customs, providing that a law or custom would remain traditional if it remained identifiable through time, regardless of whether there is a change in

168 McEvoy, T. Evidence to Senate Standing Committee on Legal and Constitutional Affairs, Sydney, 16 April 2009, at 21, quoted in ibid at 82 169 Connolly, op cit, at 198 170 Ibid, at 198-199 171 Committee on the Elimination of Racial Discrimination, Concluding Observations of the committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005) para 17, quoted in Native Title Amendment Bill 2011 (Cth) Explanatory Memorandum, page 2 172 Native Title Amendment (Reform) Bill 2011 (Cth), s 12, proposed new Native Title Act 1993 (Cth) s 61 AB

42 | P a g e those laws or customs or in the manner in which they are acknowledged or observed, negating a need for continuous maintenance of connection in any case, and recognising commercial native title rights and interests.173

In addition, this Bill sought to insert a new s 3A into the objects of the Native Title Act, so an additional object would be that governments in Australia take all necessary steps to implement principles of the United Nations Declaration on the Rights of Indigenous People (UNDRIP), such that the provisions of the Native Title Act are to be interpreted and applied in a manner consistent with that Declaration and these principles must, in every relevant case, be applied by each person exercising a power or performing a function under the Native Title Act. Presumably such interpretive provisions were intended to direct the Court, among other things, to consider the racially discriminatory effects of any evidential requirements directed at native title parties. Aspects of the international law considerations are addressed further in Chapter 3.

3. Native Title Amendment (Reform) Bills 2012 and 2014 The Greens again attempted to amend the Native Title Act to give effect to the above matters in the Native Title Amendment (Reform) Bill (No. 1) 2012 (Cth) and (in identical terms) in the Native Title Amendments (Reform) Bill 2014 (Cth). The 2012 and 2014 Bills largely mirror the 2011 Bill, although the UNDRIP objects were not included and the proposed s 61 AB was substantially redrafted, to drop the express reference to the ability to set aside the presumption where there is evidence of substantial interruption in the acknowledgment of traditional laws or the observation of those traditional customs. In its place, this proposed section merely states that the requirements of s 223(1) may be determined as satisfied if the primary reason for a substantial interruption or change is the action of a State, Territory or non-Aboriginal or Torres Strait Islander person.

All three of the Greens Bills were unsuccessful, and a presumption of continuity has not received governmental support. The then Attorney-General cited inadequate discussion or agreement on how reversing the onus of proof would work, the need for more technical work, and a preference for “incremental but significant changes that can improve the Native Title Act.”174

4. ALRC Connection Report terms of reference The then Commonwealth Attorney-General, the Hon. Mark Dreyfus MP, announced the establishment of the ALRC inquiry into “Native Title law - Twenty Years and Beyond” on 5 June 2013, with the following justification given for establishing the inquiry:

The Native Title Act turns twenty this year. The time has come to consider how to improve native title law and encourage faster, simpler resolution of native title claims for all parties. We

173 Ibid, proposed new Native Title Act 1993 (Cth) ss 223(1 A) - (1D) and replaced s 223(2) 174 Roxon, N, quoted in Cullen, S “Government to speed up Native Title Claims” ABC News, 7 June 2012, http://www.abc.net.au/news/2012-06-06/aovernment-to-speed-up-native-title-claims/4055290 (accessed on 6 August 2017)

43 | P a g e must make sure that the law helps to unlock the economic potential of native title for Indigenous Australians.'75

Subsequently the then Attorney-General announced the finalised terms of reference for the ALRC inquiry, as follows:

The Native Title Act 1993 has now been in operation for 20 years, so it is timely to take an in- depth look at some key areas of the Act and how well it works in practice.'76

Greater particularisation for why the ALRC inquiry was considered necessary is apparent from the ALRC’s March 2014 Issues Paper, which identifies the unduly limiting nature of the connection requirements for proof of native title, particularly in situations of extensive dispossession of claimant groups, and concerns about the complexity, length and difficulty of native title proceedings generally.175177 178In 176relation to consideration of connection requirements by the ALRC, the Commonwealth Attorney-General’s Department noted:

The connection process is a very important and complex area of the native title system, and therefore, any reform proposals in this area require thorough and detailed consideration and wide ranging stakeholder consultation. Any amendments to the Act affecting connection would fundamentally alter the current operation of the Act.'78

The terms of reference for the ALRC Connection Report included considering changes to improve the operation of native title laws and legal frameworks regarding (as relevant to this thesis) the following aspects of the Native Title Act:

• connection requirements relating to the recognition and scope of native title rights and interests, including but not limited to whether there should be:

• a presumption of continuity of acknowledgement and observance of traditional laws and customs and connection

• clarification of the meaning of ‘traditional’ to allow for the evolution and adaptation of culture and recognition of ‘native title rights and interests’

• clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature

• confirmation that ‘connection with the land and waters’ does not require physical occupation or continued or recent use, and

175 Dreyfus, M, J. Macklin and G Gray, “New Australian Law Reform Commission inquiries announced,” media release, 5 June 2013, http://www.formerministers.dss.qov.au/13054/new-australian-law-reform-commission-inquiries-announced/ (accessed 19 September 2017) 176 Dreyfus, M. and J Macklin “Terms of reference for native title law inquiry announced” media release, 3 August 2013, http://www.formerministers.dss.qov.au/12978/terms-of-reference-for-native-title-law-inquirv-announced/ (accessed 19 September 2017) 177 Australian Law Reform Commission, Review of the Native Title Act 1993 Issues Paper (IP 45), March 2014, at 13 178 Commonwealth Attorney-General’s Department, op cit, at 4

44 | P a g e • empowerment of courts to disregard substantial interruption or change in continuity of acknowledgement and observance of traditional laws and customs where it is in the interests of justice to do so.17B

Importantly, the terms of reference did not specifically refer to any need for reforms to introduce Inference Guidelines. These emerged independently as a recommendation by the ALRC, in preference to a presumption of continuity, as discussed further below. For this reason, the ALRC was not presented with a set of policy principles to guide its recommendations around Inference Guidelines specifically. However, in the context of calls for greater inference drawing by State respondents in potential consent determinations, Duff has suggested policy considerations such as the capacity of native title to promote Indigenous economic development and reduce disadvantage; enhanced trust and cooperation arising from native title negotiations; and the sheer economic cost of gathering and assessing detailed connection material.179180

5. ALRC Connection Report recommendations A key tone of the ALRC Connection Report is its findings (consistent with the submission of the Law Council of Australia) that “the law relating to connection requirements remains complex to navigate for all parties, and variable in its outcomes for Aboriginal and Torres Strait Islander peoples across Australia.”181 Further:

the ‘laws and customs’ model for recognising and determining native title fulfils the important function of recognising native title, but it contributes to a complex legal test for connection in the Native Title Act that calls for considered reform. In addition, statutory construction of s 223 of the Native Title Act has expanded the requirements for proof of native title beyond the elements contained in the actual definition in the Act.'82

These standards are “in tension with the object of the Native Title Act to recognise and protect native title, especially given an often incomplete historical and anthropological record.”183

The ALRC Connection Report therefore makes 30 recommendations to “retain the framework of native title derived from Mabo [No 2] but address entrenched difficulties in the proof of native title.”184

Consistent with its terms of reference, the ALRC Connection Report includes a chapter devoted to recognising the peculiar challenges which apply to proof of native title. The key output of this chapter is the recommendation as follows:

Recommendation 7-1 The Native Title Act 1993 (Cth) should provide guidance regarding when inferences may be drawn in the proof of native title rights and interests. The Act should provide that the Court may draw inferences from contemporary evidence that the claimed

179 ALRC (April 2015), op cit, at 5 - 6 180 Duff, op cit, at 17 181 ALRC (April 2015), op cit, at 16 182 Ibid 183 Ibid, at 22 184 Ibid, at 16

45 | P a g e rights and interests are possessed under the traditional laws acknowledged and traditional customs observed by the native title claim group.185

The ALRC Connection Report proposes Recommendation 7-1 as an alternative to recommendations made elsewhere in the report, namely Recommendations 5-2 and 5-3, in the event these recommendations are not implemented.186 Recommendations 5-2 and 5-3 are as follows:

Recommendation 5-2: The definition of native title in s 223 of the Native Title Act 1993 (Cth) be amended to clarify that it is not necessary to establish that the acknowledgement of traditional laws and the observance of traditional customs have continued substantially uninterrupted since sovereignty.

Recommendation 5-3 The definition of native title in s 233 of the Native Title Act 1993 (Cth) be amended to clarify that it is not necessary to establish that traditional laws and customs have been acknowledged and observed by each generation since sovereignty.187

These and some other recommendations contained in the ALRC Connection Report acknowledge that “[o]ver time, an expanded set of requirements for determining native title has been articulated beyond the elements contained in the express definition of native title” and “there are new matters requiring evidence, certainly beyond those indicated either by the judgments in Mabo [No 2] or the strict words of s 223(1 ).”188

Recommendation 7-1 differs from Recommendations 5-2 and 5-3 in that the latter are directed at paring back the additional requirements which have, over time, been imposed on those seeking to prove native title, whether by dispensing with such requirements or clarifying their non-application. Recommendation 7-1 is directed at assisting the Court to draw inferences as to continuing acknowledgement and observance of laws and customs, irrespective of how native title is defined for the purposes of proof. It is therefore not necessarily the case that Recommendations 5-2 and 5-3 and Recommendation 7-1 are alternatives to each other - indeed there is nothing in the ALRC Connection Report to suggest these are necessarily limited in this way.

This is particularly so as the ALRC found the reforms to the definition in s 223 are preferable to any introduction of a rebuttable “presumption of continuity of acknowledgement and observance of traditional laws and customs and connection,” but did note the value of importing guidance “regarding when inferences may be drawn in the proof of native title rights and interests” into the Native Title Act to supplement the benefits of the s 223 reforms.189 190

Inferences are also commonly referred to as "presumptions of fact,” in contrast to a reversal of the onus of proof or presumption of continuity which is a “presumption of law,” being “rules of evidence that affect how a fact in issue is proved.”100 A Court is obliged to draw a presumption of law, but it is for the trier of fact whether to draw a presumption of fact. However, Heydon, (quoted by the ALRC)

185 Ibid, at 220 186 Ibid, at 221 187 Ibid, at 146 188 Ibid, at 74 189 Ibid, at 22,211,216-222. 190 Ibid, at 32, with reference to Heydon, J.D., LexisNexis, Cross on Evidence, Vol 1 (at Service 164) [7255]

46 | P a g e describes a presumption of fact as working such that “the party proving the basic fact is likely to win on the issue to which the presumed fact relates, in the absence of evidence to the contrary adduced by the other party.”191

The distinction between an inference and presumption has been summarised as follows:

an inference or conclusion differs from a presumption, ... a presumption in strictness is an inference as to the existence of one fact, from a knowledge of the existence of some other fact, made solely by virtue of previous experience of the ordinary connection between the known and inferred facts, and independently of any process of reason in the particular instance.192 193

The ALRC’s grounds for preferring “an increased willingness to draw inferences to satisfy the burden of proof” in native title over a presumption of continuity included impacts on the quality of material made available to foster consent determinations; doubts around whether a presumption of continuity would reduce the burden on claimants due to the likelihood respondents would continue to test and challenge the elements of the presumption; a loss of control over research by claimants; and existing Federal Court case management processes already accomplishing much of what a presumption of continuity would.103

However, the ALRC does distinguish a presumption of continuity from the situation where evidence of commonly recurring situations may place a provisional burden on respondent parties to bring evidence to challenge the drawing of such inferences.194 These matters, are discussed further in Chapters 7 and 8 in relation to a tactical burden.

Both sets of recommendations are also directed at realigning matters of native title proof with the Native Title Act’s status as beneficial legislation.195 In this regard, the ALRC Connection Report states that:

The ALRC considers that, similarly to proof of custom at common law, it is appropriate to make clear in the Native Title Act that the inference that the claimed rights and interests are possessed under traditional laws and customs is available from contemporary evidence ... this approach to the drawing of inferences is increasingly necessary if the beneficial purpose of the Act is to be sustained as the date of Crown assertion of sovereignty grows more distant.196

Recommendation 7-1 is directed at facilitating “the drawing of inferences of fact in defined circumstances, while recognising that the extent of evidence required to establish native title is in tension with the object of the Act to recognise and protect native title.197 The challenges to proof of

191 Australian Law Reform Commission, Review of the Native Title Act 1993 Discussion Paper (DP 82), October 2014, at 90, quoting Heydon, J.D. LexisNexis, Cross on Evidence, Vol 1 (at Service 164) [7215] 192 Starkie, T, quoted in J James, G. F. “Relevancy, Probability and the Law” (September 1941) 29(6) California Law Review 689 at 696 fn 14 193 Ibid, at 86 - 89 194 ALRC (April 2015), op cit, at 222 195 Ibid, at 74 and 78 196 Ibid, at 226 107 Ibid, at 26

47 | P a g e native title that this recommendation is directed at mitigating is summarised in the ALRC Connection Report as follows:

Under the Native Title Act, the legal determination of rights and interests possessed under laws and customs with origins in the pre-sovereign period is deferred for some 200 years. This poses an acute practical and metaphysical problem of proof for native title claimants. It contributes to the transaction costs experienced by parties involved in determining native title ‘connection’. There are inherent difficulties in producing evidence of a long-distant past and connecting it to the present.™*

In this regard, the ALRC considers “a willingness to draw inferences in support of continuity of connection is increasingly necessary if the beneficial purpose of the [Native Title Act] is to be sustained as the date of Crown assertion of sovereignty grows more distant.”169 These issues are further expanded upon in the review of the historiographic debates, in Chapter 4. As the ALRC has noted, these challenges are not lost on the Federal Court, such as in relation to the following:

• The lack of written records, for example:

Claimants in native title litigation suffer from the disadvantage that, in the absence of a written tradition, there are no indigenous documentary records that enable the Court to ascertain the laws and customs followed by Aboriginal people at sovereignty. While Aboriginal witnesses may be able to recount the content of laws and customs acknowledged and observed in the past, the collective memory of living people will not extend back for 179 or 180 years.198200 199

• Where there are written records, the disadvantage posed by the ethnocentric lens of many authors, for example:

the historical record is incomplete. ... The nature of these 'silences' and the manner in which they should be addressed... 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. ...the records of police and pastoralists are ethnocentric; there is a lack of continuity of anthropological observation of the customs, practices and lifestyles of Aboriginal people, and Europeans generally ... did not identify people by tribe or language.201

And for example:

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.202

And further, for example:

198 Ibid, at 76 199 ALRC (October 2014), op cit. at 93 200 Jango v Northern Territory of Australia (2006) 152 FCR 250 at [462] per Sackville J, quoted in ALRC (April 2015), op cit, at 213 201 Daniel v State of Western Australia [2003] FCA 666 at [149] referenced in ALRC (April 2015), op cit, at 213 fn 18 202 Risk v Northern Territory of Australia [2006] FCA 404 at [135], referenced in ALRC (April 2015), op cit, at 213 fn 18

48 | P a g e early records made by European amateur and professional ethnographers are limited by the ethnocentric views of the writers and by the limits on their understanding of the language and culture of those about whom they wrote.203

As further discussed in Chapter 8, these and other factors already motivate the Courts to rely on inferences in native title determinations, where appropriate circumstances are satisfied. The ALRC recognises this, as this recommendation is directed at providing “legislative affirmation of the practice of the Federal Court in drawing inferences in relation to proof of native title”204 (which is the subject of research question number 2 in this thesis).

As an example of a matter that legislative guidance for inference from contemporary sources would be beneficial, the ALRC Connection Report cites the following submission of Central Desert Native Title Services:

where there are gaps in the documentary evidence but where reasonable evidence of contemporary connection could be extrapolated to continuity of connection since sovereignty, for example where connection of grandparents and great grandparents to a particular area are within claimants living memories.205

The ALRC Connection Report also highlights the role of inference in consent determinations, noting the approach taken by the Northern Territory and South Australian governments in relation to beneficial inferences, particularly around claimant assertions on genealogy and on historical assertions where there is no other evidence.206 As noted by the ALRC, the South Australia Government submitted:

inferences tend to be drawn based on genealogical and anthropological information that link ‘snapshots’ in time periods. The question of interruption is rarely raised without some other (usually historical) evidence suggesting that interruption may be relevant and it is then discussed with the applicant.207

Accordingly, the ALRC saw fit to acknowledge that practical developments have already occurred in the processes of both the Court and the parties to proceedings, such that inferential reasoning was applied to “fill the gaps in continuity where appropriate.”208 The extent of this is examined further in Chapter 8.

203 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 at [441], quoted in ALRC (April 2015), op cit, at 213 204 ALRC (April 2015), op cit, at 221. This Report cites a number of instances of the Federal Court seeing fit to draw inferences in native title cases - Ibid, at 222 - 224, such as in Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; Gumana v Northern Territory of Australia and Others [2005] FCA 50; Jango v Northern Territory of Australia [2006] FCA 318; Badimia; AB (deceased)(on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268; and Lander v State of South Australia [2012] FCA 427 205 ALRC (April 2015), op cit, at 222; ALRC (October 2014), op cit, at 92 206 ALRC (April 2015), op cit, at 224 207 ALRC (October 2014), op cit, at 108 -109 208 Ibid, at 109

49 | P a g e 6. Conclusion to Chapter 2 This Chapter identified the key ALRC Connection Report recommendations, specifically the recommendation for the development of Inference Guidelines, as well as previous calls for and attempts at relevant reforms. It also analysed the bases on which the ALRC identified there is an inference-imperative in native title determinations.

Rather than embracing the recommendations for a presumption of continuity of connection made previously by various persons, and previously the subject of unsuccessful reform bills, the ALRC Connection provides alternative, measured and pragmatic recommendations in relation to the reform of proof of connection requirements. Such alternatives include recommendations to amend the definition of native title in the Native Title Act, which may pose the potential for material change in the proof requirements for native title.

The other option put forward in the ALRC Connection Report, the inclusion of Inference Guidelines in the Native Title Act, need not result in any divergence from the current requirements of proof of native title. However, these would provide clarity for the Courts. Hopefully, Inference Guidelines would also provide greater consistency of outcomes for participants in the native title trial process, particularly having regard to the burdens imposed by the specific types of evidence relevant to native title.

Usefully, the ALRC Connection Report justifies the need for Inference Guidelines by identifying a number of the evidentiary challenges which are analysed further in the relevant literature in Chapter 4, the literature, judicial tools and case law the subject of Chapter 5, and the case law analysed in Chapters 7 and 8. The extent to which there is already a set of existing consistent principles applicable to inferential reasoning in native title matters is the subject of Research Question 2. On a preliminary basis, it is clear from the various caselaw references throughout the ALRC Report that the ALRC itself was conscious of the presence of pre-existing principles and had commenced the process to identify how these have been applied. This and the analysis in subsequent Chapters of this thesis will ultimately support a largely affirmative finding on Research Question 2.

50 | P a g e Chapter 3 - The judicial-historical endeavour

Overview of Chapter 3 This Chapter and Chapters 4 and 5 develop on the matters considered in the previous Chapters, to set out a more comprehensive consideration of the issues which drive the need to alleviate the evidentiary challenges faced by native title claimants in relation to maintenance of connection by the observance and exercise of traditional law and custom. This is referred to as “the inference imperative in native title.”

This Chapter 3 considers the literary context for why it is imperative that reform in this area be addressed, drawing on common themes identified throughout the international and Australian literature on remedial justice for indigenous peoples. The purpose of this Chapter is therefore to analyse what is termed the “judicial-historical endeavour” drivers of the need to take steps to address the evidentiary challenges faced by native title claimants. In summary, the concept of a judicial- historical endeavour is derived from drivers analysed in this Chapter, which include:

• The international law drivers for achieving appropriate outcomes - including a “right to know” and the right to develop and transmit that knowledge, which is the subject of Part 1 of this Chapter. • The role that judicially-sanctioned preservation of knowledge can play in promoting reconciliation, as analysed in Part 2 of this Chapter. • A similar motivation to foster a legitimately pluralist concept of national identity and collective memory, which is considered in Part 3 of this Chapter. • The motivation to protect and preserve historical knowledge, and perhaps more importantly, acknowledge that the scrutiny placed on judicially-sanctioned versions of the past is elevated by the subsequent publication of histories based on the evidence prepared for trial purposes, which is analysed in Part 4 of this Chapter. • The imperative of having a robust methodology to judge competing evidence for public confidence in the law and the judicial system, particularly having regard to emotive matters such as shared history and rights to land, which is the subject of Part 5 of this Chapter.

The concept of a judicial-historical endeavour also ties in with the matters the subject of Chapters 4 and 5, being an “endeavour” to assess evidence of the past having regard to the specific challenges and obstacles posed for particular sources of evidence.

It may be argued that these rights and motivations are for Aboriginal people and Torres Strait Islanders subsidiary to the real issue which is the recognition of rights and interests in land and waters. However, for some this may be a contentious assertion, and these issues are at least ancillary to the evidential challenges that crucially must be overcome in any case.

51 | P a g e 1. International law Fundamental human rights in relation to a people’s rights to know what has happened in their past, and obligations on nation states to provide mechanisms that effectively facilitate the needs of such a right to know, are evident in various instruments of international law. This is reflected in the attempts to amend the objects of the Native Title Act to include that governments in Australia take all necessary steps to implement the principles of UNDRIP, as discussed in Chapter 2. Article 13 of UNDRIP recognises the right of indigenous peoples to “revitalize, use, develop and transmit to future generations’” both their histories and their oral traditions (amongst other things), as well as the obligation on States to “take effective measures to ensure that this right is protected.” Article 15 recognises the rights of indigenous people to the “dignity and diversity” of their histories, “which shall be appropriately reflected in education and public information.”209

Hausler argues the fact that proof of native title and associated concepts globally rests on oral histories and traditions boosts the importance of such oral traditions given their key to affirming other substantive rights.210 An example of such a substantive right is recognised in Article 27 of UNDRIP, which requires that States establish and implement an appropriate process, in which Indigenous people can participate, to recognize and adjudicate the rights of indigenous peoples to traditionally owned or occupied lands.211

There are various other examples where it appears international law demands processes that provide adequate recognition of the histories of specific communities. In the context of human rights violations, principles 2 and 3 of Part II of the United Nations Commission on Human Rights Updated set of principles for the protection and promotion of human rights through action to combat impunity (8 February 2005),212 213recognises that “every people has the inalienable right to know the truth about past events,” and that a State has a duty to preserve archives and other evidence for the purpose of preserving collective memory from extinction. Further, Principle 5 provides that:

States must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, to give effect to the right to know. Appropriate measures to ensure this right may include non-judicial processes that complement the role of the judiciary.2™

An intention to seek to avoid any repetition of historical misdeeds is a further aim of such international principles. The Inter-American Commission on Human Rights has held that “[t]he right of a society to

209 United Nations Declaration on the Rights of Indigenous People, 61/295, 13 September 2007 http://www.un.orq/esa/socdev/unpfii/documents/DRIPS en.pdf (accessed 24 August 2017) 210 Hausler, K. “Indigenous perspectives in the courtroom" (January 2012) 16(1) The International Journal of Human Rights 5*1 at 54 211 http://www.un.orq/esa/socdev/unpfii/documents/DRIPS en.pdf (accessed 24 August 2017) 212 United Nations Commission on Human Rights, Updated set of principles for the protection and promotion of human rights through action to combat impunity (8 February 2005) http://www.derechos.org/nizkor/impu/principles.html (accessed 24 August 2010) 213 Ibid

52 | P a g e have full knowledge of its past is not only a mode of reparation and clarification of what has happened, but is also aimed at preventing future violations.”214

Article 2 of the International Labour Organisation Convention on Indigenous and Tribal Peoples 1989 requires that “Governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.”215 Importantly, this Article recognises the potential disadvantages that certain societies may have in such a process, and further demands that such peoples be placed on an equal footing to other members of the population. Whilst not specifically referring to evidential complexities, it seems reasonable to interpret these provisions as contemplating such matters, particularly having regard to the reference elsewhere in the Article to the requirement that rights be realised with respect for such persons’ “social and cultural identity, their customs and traditions and their institutions.”216

2. Reconciliation Reconciliation in the intra-national and international arena has also been acknowledged as fundamentally driven by appropriate mechanisms for determining the detail of historical events. Reconciliation Australia defines reconciliation as being “about helping all Australians to move forward with a better understanding of the past and how the past affects the lives of Indigenous people today.”217 The source of such sentiments can be traced back at least as far as the genesis of Aboriginal land rights in Australia itself, with the architect of Aboriginal land rights, Woodward J, among those who argued that “to address the injustices of the past and their continuing effects” was central to the promotion of “social harmony and stability."218 219Similarly the “general public’s ignorance of the history” was a key impetus for the establishment of the Human Rights and Equal Opportunity Commission (HREOC) National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families.2™

More recently, the Canadian Truth and Reconciliation Commission found:

Too many Canadians know little or nothing about the deep historical roots of these conflicts. This lack of historical knowledge has serious consequences for First Nations, Inuit, and Metis

214 Inter-American Commission on Human Rights, Monsignor Oscar Arnulfo Romero Y Galdamez, El Salvador, Report No. 37/00, Case 11.481, April 13, 2000 http://www.cidh.orq/annualrep/99enq/merits/EISalvador11.481 a.htm# ftn147 (accessed 6 March 2010) at paragraph 148. Similar sentiments are noted in Commission for Reception, Truth and Reconciliation in Timor- Lest (CAVR), Chega! The Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste, April 2006, at Part 3 page 5 http://www.cavr-timorleste.org/en/cheqaReport.htm and the 1993 report of the Chilean National Commission on Truth and Reconciliation (see Orford, A. “Commissioning the Truth,” 15 Colum. J. Gender & L. 851 2006 at 855); For other examples see Orentlicher, D. Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, United Nations Commission of Human Rights E/CN.4/2004/ 88 27 February 2004, http://daccess-dds-nv.un.orq/doc/UNDQC/GEN/G04/113/55/PDF/G0411355.pdf?OpenElement (accessed 6 March 2010) at paragraph 18 215 http://www.ilo.orq/dvn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P1210Q ILO CODE:C169 (accessed on 20 September 2017) 216 Ibid 217 Quoted in Ritter, D. The Native Title Market, University of Western Australia Press, Crawley, 2009, at 64 218 Van Krieken (2006) at 582 219 Human Rights and Equal Opportunity Commission, Bringing them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Sydney, April 1997, at 18

53 | P a g e peoples, and for Canada as a whole. In government circles, it makes for poor public policy decisions. In the public realm, it reinforces racist attitudes and fuels civic distrust between Aboriginal peoples and other Canadians. ... History plays an important role in reconciliation; to build for the future, Canadians must look to, and learn from, the past.220

Whilst the Courts have on various occasions and to varying extents sought to distance themselves from such a function,221 the role of the judicial-historical endeavour in reconciliation remains popularly acknowledged. This can be “to demonstrate that even in terms of ‘settler’ law, as it ought to have been applied, [Aboriginal peoples’] ancestors had certain legal rights and that the historical denial of those legal rights was unlawful.”222 Osiel argues that Courts “employ the law of evidence, procedure, and professional responsibility to recast the courtroom drama in terms of the “theater of ideas,” where large questions of collective memory and even national identity are engaged ... [and thereby] contribute to social solidarity.”223 For this to be effective, it must be transparent, as argued by Posel:

Precisely because of the partialities, distortions, and violations of the past, the project of national reconciliation is closely linked to the robustness of the truths invoked in its name. ... Any whiff of distortion, any hint of lingering bias or suppression, would likely delegitimise the political project to which the project of truth telling is yoked.224

Osiel argues that through an appropriate judicial-historical endeavour, Courts can contribute to solidarity even where there is no consensus on a single, shared interpretation the past, in that “proceedings [may be] founded on civil dissensus. They produce the kind of solidarity embodied in the increasingly respectful way that citizens can come to acknowledge the differing views of their fellows.”225

3. National identity and legitimacy There is also significant commentary, both in Australia and beyond, regarding the importance of the judicial-historical endeavour to considerations of national identity and legitimacy. Orford describes a role for Courts in transforming “the country’s fragmented ‘collective memory’ into a shared national history.”226 Similarly Barkan argues that “[t]he very recognition of one’s narratives has become a basic identity need, a contested territory” which can be appropriately harnessed “into a force for rebuilding the nation.”227

220 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future. Summary of the Final Report of the Truth and Reconciliation Commission of Canada, 2015 at 8. http://www.trc.ca/websites/trcinstitution/File/2015/Honourinq the Truth Reconciling for the Future July 23 2015.pdf (accessed 20 November 2017) 221 Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136, per Crispin J at [60]; Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] 1606 FCA 222 Walters, M.D. “Towards a ‘taxonomy’ for the common law: legal history and the recognition of Aboriginal customary law” in Kirkby, D. and C. Coleborne, Law, history, colonialism - The reach of empire, Manchester University Press, Manchester, 2010 at 138 223 Osiel, op cit, at 3. See also at 38 in the context of the Eichmann and Videla trials. 224 Posel, D. “History as Confession: The Case of the South African Truth and Reconciliation Commission” in Attwood, Chakrabarty and Lomnitz, op cit, at 126 225 Osiel, op cit, at 22 - 23 226 Orford, op cit, at 856 227 Barkan, op cit, at 345

54 | P a g e There are various examples globally of the judicial-historical endeavour delivering national legitimacy in the context of collective memory of war crimes and other human rights abuses.228 In the report of the Commission for Reception, Truth and Reconciliation for Timor-Leste (the CAVR), the report’s authors address the question “Why, then, when Timor-Leste is focused on the future, is a Report being presented that deals with the past?”229 as follows:

History telling that acknowledges complexity, that makes space for the voice of those often silenced, and that opens the way for open-minded reflection can make a contribution to building a nation where the idea of strength is based on respect for others, pluralism and democracy based upon the equality of all citizens.230

Similarly, the report of the Chilean National Commission on Truth and Reconciliation acknowledges that whilst historical facts may be differently interpreted, “[t]he unity of a nation ... largely depends on a shared memory.”231 In Canada, the judicial-historical endeavour as an imperative for national identity and legitimacy was identified in the Report of the Royal Commission on Aboriginal Peoples, wherein the Commissioners argued “[w]e simply cannot understand the depth of these issues [between Aboriginal peoples, the Canadian government and Canadian society as a whole] or make sense of the current debate without a solid grasp of the shared history of Aboriginal and non- Aboriginal people on this continent.”232 Such statements are consistent with Barkan’s argument that “being part of liberal society”233 demands a “conceding the validity of others’ narrative histories.”234

In Australia, Goodall has described the role of legal proceedings in the interpretation given to national histories as being “a testing place for both the new politics and the new interpretations of the past.”235 Osiel specifically acknowledges the development of native title claims in Australia as an instance where “formations and transformations of collective memory are legally induced.”236 This role was foreseen in the second reading speech for the Native Title Act, in which then Prime Minister Keating acknowledged:

no self-respecting democracy would deny its history. To deny these facts would be to deny part of ourselves as Australians. This is not guilt: it is recognizing the truth ... about the past and, equally, the truth about our contemporary reality.237

228 Osiel, op cit, at 229 229 CAVR, op cit, at Part 3 page 5 230 Ibid, at 5 - 6 231 Report of the Chilean National Commission on Truth and Reconciliation (1993), quoted in Orford, op cit, at 855 232 Royal Commission on Aboriginal Peoples, Indian and Northern Affairs, Looking Forward Looking Back, Report of the Royal Commission on Aboriginal Peoples, Indian and Northern Affairs, Canada, October 1996 http://www.collectionscanada.qc.ca/webarchives/20071211050944/http://www.ainc-inac.qc.ca/ch/rcap/sq/sq4 e.html#19 Volume 1, Chapter 3 (accessed 24 August 2017) 233 Barkan, op cit, at 315 234 Ibid, at 323 235 Goodall, H. “The Whole Truth and Nothing But ...’Some Interactions of Western Law, Aboriginal History and Community Memory” in Attwood, B. and J. Arnold (eds) Power, Knowledge and Aborigines, La Trobe University Press, Bundoora, 1992 at 106 236 Osiel, op cit, at 5 237 The Hon Paul Keating, MP, House of Representatives Hansard, 16 November 1993, at 2877

55 | P a g e Similarly, Bennett describes efforts to resolve the “uncertainty about what to accept as the truth about Australia’s past treatment of its Aboriginal people” as contributing to “the enhancement of racial trust in Australia.”238

4. Knowledge preservation The judicial-historical endeavour can also be considered to have a pedagogical purpose.239 It places the Court in a position of privilege to preserve conflicting accounts of recent history and memory,240 but has also served to develop history generally and in particular to focus on areas of history where there had previously been a paucity of knowledge.

Numerous instances of the value of the judicial-historical endeavour for the preservation of historical knowledge have been acknowledged, both by participants and subsequent commentators. The Nuremburg war crimes trials, for example, were described by prosecutor Robert Kempner, as “the greatest history seminar ever held in the history of the world.”241 Esteemed historian Alan Bullock described these trials as “an absolutely unqualified wonder” from the point of view of the historian.242 Indeed, the charter for the establishment of the International Military Tribunal to hear these trials avowed the desire of to “make available for all mankind to study in future years an authentic record of Nazi crimes and criminality.”243 Similar benefits of preserving knowledge for the benefit of future generations have been attributed to the affidavits of the professional historians supplied for the purposes of the Auschwitz trials in 1964.244

However, any judicial purpose of knowledge preservation in war crimes has not been without its detractors. The value of the Adolf Eichmann trial as a chronicle of history has been the subject of debate, with Arendt insisting the stated aims of the State and the prosecution to put the history of Anti-Semitism at the centre of the trial “was bad history and cheap rhetoric; worse, it was clearly at cross-purposes with putting Eichmann on trial.”245 This is a claim refuted by Douglas, who argues “(t)he question is not whether the trial can serve the interests of history and memory, but how it can do so responsibly.”246 Douglas credits the streamlined rules of evidence which permitted hearsay and “a more capacious notion of relevance” at the Nuremberg trials and the Eichmann trial with overcoming the difference in epistemological conventions of the Court and the historian. These permitted a more fluid, narrative form of testimonies which were designed to “provide a less restrictive conduit for history and memory.”247

238 Bennett, D. “The Cubillo and Gunner Cases” [November 2000] Quadrant 35 at 35 239 Osiel, op cit, at 2 240 Ibid, at 41 241 Quoted in Evans, R.J. “History, Memory and the Law: The Historian as Expert Witness” (October 2002), 41(3) History and Theory 326 at 331 - 332 242 Quoted in de Graaff, B. “The Difference between Legal Proof and Historical Evidence. The Trial of Slobodan Milosevic and the Case of Srebrenica" (2006) 14(4) European Review 499 at 500 243 Quoted in Osiel, op cit, at 81 244 Evans (Oct., 2002), op cit, at 342 245 Arendt, H. Eichmann in Jerusalem - A Report on the Banality of Evil, Penguin Classics, New York, 2006 at 19 246 Douglas, L. “The Didactic Trial: Filtering History and Memory into the Courtroom” (2006) 14(4) European Review 513 at 514 247 Ibid, at 516

56 | P a g e Similar debates arose in relation to the International Criminal Tribunal for the former Yugoslavia (ICTY). De Graaf argues that the historical record established by the ICTY was unsatisfactory from the viewpoint of a professional historian. This was particularly as expert witnesses were restrained from drawing conclusions, this being a matter for the judges whose proceedings tend to impose a coherence on fragmentary testimony.248 In contrast, Wilson states that the ICTY’s approach compels a reconsideration of the view that the justice process and history writing are inherently irreconcilable.249 Wilson argues the ICTY approached its work with a “novel combination of forensic evidence and historical narrative,” and placed textual interpretation at the centre of its judgment in the trial of Dusko Tadic, including by placing a heavy emphasis on expert oral evidence which “was more an extended lecture on regional history than court testimony.”250

The preservation of knowledge by the judicial-historical endeavour may also provide the foundation for the future interrogation of the historical record. For example, whilst the Timor-Leste CAVR report is said to be a “unique and ... rich resource for further research, writing and education,”251 its writers acknowledge the limitations of the report as a definitive historical account.252 However, the chair of the CAVR expressed a hope that “based on the evidence it has collected and the uncovering of new information through further research, the process of truth-seeking can continue.”253

A further perspective in relation to the preservation of historical knowledge is in relation to preserving the stage for ongoing historical debate. An example of this is the defamation action brought by David Irving against Penguin Books and Deborah Lipstadt.254 Participants in that trial have commented on the importance of its outcome for knowledge preservation. Lipstadt, described her motivation in defending the claim being that if libel was proven, “Irving could then claim that his definition of the Holocaust had been determined to be legitimate.” 255 Evans, an expert witness called by the defense in that matter, similarly considered the value of the verdict in the trial in preserving open debate among historians.256

The benefit of knowledge preservation through the indigenous land adjudication processes has also been acknowledged widely. Belgrave describes the reports of the Waitangi Tribunal as having the status of being “authoritative, if not binding, and carry the imperator of absolute truth,” although Belgrave does concede such reports have the weaknesses of reliance on the current state of historical research and reflect the authors’ abilities and concerns.257 The Federal Court in Australian native title matters has been described as being “in the unique and somewhat paradoxical position of being the creator of official knowledge both in terms of native title legal outcomes and also an upsurge

248 de Graaf, op cit, at 500, 501 and 507 249 Wilson, R.A. “Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia” (August 2005) 27(3) Human Rights Quarterly 908 at 922 250 Ibid, at 926 and 928, quoting expert witness Robert Donia 251 CAVR, op cit 252 Ibid, at Part 3 page 5-6 253 Ibid, at Preface by CAVR chair Aniceto Gutteres Lopes 254 Irving v Penguin Books Ltd, [2000] All ER (D) 523; see also Lipstadt, D.E. History on Trial - My Day in Court with David Irving, Harper Collins, New York, 2005; Evans, R.J. Lying About Hitler- History, Holocaust and the David Irving Trial, Basic Books, New York, 2002 255 Lipstadt, op cit, at 31 256 Evans (Oct., 2002), op cit, at 341 257 Belgrave, M. “Looking Forward - Historians and the Waitangi Tribunal” (2006) 40(2) New Zealand Journal of History 230 at 246

57 | P a g e of historical research and the collection of memories.”258 In this regard, North J in Nangkiriny v State of Western Australia259 acknowledged that ‘'[t]he evidence given in this case is preserved for history in the transcripts of proceedings. In time it will contribute to creating an understanding which would not have existed without this case.”260

Skyring describes the advent of native title trials as providing “an opportunity for research in new areas and from a unique perspective, bringing to life stories from long-untouched archival records.”261 Such histories “topple enduring myths about our past and present” through the “collation and discovery of archival records and sources of information that may not have seen the light of day if native title researchers were not searching for them.”262 Native title has therefore given Aboriginal people both a motivation and a means to examine their own history - a result of which is, according to Choo “[t]he excuse that Aboriginal people are invisible in the archival records is no longer tenable.”263 264

5. Public confidence In light of the issues considered in relation to knowledge preservation, the importance of the Court not producing an erroneous finding on such matters is plain. As Williams argues:

Courts are more than the mere chroniclers of historical events; they also provide authorised accounts of history. History is transformed when it becomes part of judicial deliberation. Courts pass judgment on history and in so doing radically change history... History, like other evidence, becomes a fact and, within the legal context, a fact that is rigid.26A

This is relevant to public confidence in the legal system, in that “it is that much more embarrassing for judges - and threatening to the law’s legitimacy - when judicial decisions embodying historical interpretations fail to stand the “test of time.”265 This is because once an interpretation of history is employed for the purposes of a judicial determination, “history becomes as fixed and unchangeable (or not) as is the law itself.”266 Selway notes a real example of this, in the Full Federal Court’s determination in Anderson v Wilson267 (Anderson) with reference to the High Court’s findings in Wik,

258 Curthoys, Genovese and Reilly, op cit, at 227 259 [2002] FCA 660 260 Ibid, at [17], Other examples of this have been identified by Curthoys, Genovese and Reilly, op cit, at 211, in the judgments of Merkel J in Shaw v H/o/f [1998] FCA 389 (in relation to whether each of the respondents were an "Aboriginal Person" who could stand for election under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)), and Von Doussa J in Chapman v Luminis Pty Ltd (No 4) [2000] FCA 1121 (litigation in relation to claims of Aboriginal cultural heritage impacting upon the development of the Hindmarsh Island Bridge) 261 Skyring, F. “Setting the Record Straight: Writing history for native title claims,” in Bauman and Click, op cit, at 338 262 Ibid, at 344 and 345 263 Choo, C. “Historians and native title: the question of evidence” in Kirkby and Coleborne, op cit, at 274 - 275. For examples of the preservation of historical expert evidence from Australian native title cases, see Owen, C. It’s Still in My Heart, This is My Country: The Single Noongar Claim History, UWA Publishing, 2009 (in relation to Bennell v State of Western Australia [2006] FCA 1243) and Cane, S. Pila Nguru: The Spinifex People, Fremantle Arts Centre Press, 2002 (in relation to Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717). 264 Williams, J. quoted in Selway, op cit, at 139 265 Osiel, op cit, at 219 266 Selway, op cit, at 153 267 [2000] FCA 394

58 | P a g e in that “[w]hether the history was right, wrong or indifferent, it had formed part of the legal reasoning of the High Court and, to that extent, had become binding.”268

Similarly the Canadian case of Delgamuukw v British Columbia269 (Delgamuukw) has been said to be able to be “read as forms of history."270 271Such comments go to the imperative that the judicial-historical endeavour can withstand public criticism. In this respect, a solid historical platform to underpin the law can also serve to mitigate against diminishment of public confidence in the legal process. Says Walters:

If a modem judge were to say that the common law did recognize Aboriginal customs without offering any historical justification for that assertion, then it might be argued that the judge was simply concealing a political decision about modern rights behind a distorted view of the imperial and colonial past.27''

6. Conclusion to Chapter 3 This Chapter considered the “judicial-historical endeavour” imperatives for reform of how historically- sourced evidence is interpreted generally, and specifically in relation to native title claims in Australia, with reference to common themes identified throughout the international and Australian literature on remedial justice for indigenous peoples. Such motivations are central to the need to develop transparent, consistent and fair Inference Guidelines for the assessment of claimant oral evidence, expert evidence and archival material. Research Question 1 asks what issues are raised in the literature on remedial justice for indigenous people which give rise to the inference imperative in native title. As is made clear in this Chapter, these include issues such as the right to know and the right to transmit histories under international law obligations, aspirations to enhance national reconciliation endeavours through transparent and fair historical record keeping, implications of pluralist and democratic approaches to recording the past for national identity and legitimacy, pedagogical benefits as well as the elevated scrutiny applicable to judicial decisions where evidentiary material becomes the subject of published works, and the imperative to have a robust methodology to judge competing evidence for themaintenance of public confidence. Whilst these matters might be subsidiary to the primary indigenous aspirations of rights to land, they remain at least incidental in many ways to the evidentiary path to fulfilling that.

268 As observed by Selway, op cit, at 152; See also State of Western Australia v the Commonwealth [1995] HCA 47 at paragraphs 1 and 9 per Dawson J; Contrast the comments of Callinan J in State of Western Australia v Ward [2002] HCA 28 at fn 816. 269 (1993) 104 DLR (4th) 470 270 Curthoys, Genovese and Reilly, op cit, at 109 271 Walters in Kirkby and Coleborne, op cit, at 127

59 | P a g e Chapter 4 - Historiographic and epistemological controversies

Overview of Chapter 4 This purpose of this Chapter is to analyse the challenges for the inference imperative in native title addressed through the “History Wars” and associated debates. In recent times the historiographic and epistemic commentary in Australia on matters relevant to evidence in native title claims has been widespread. Part 1 of this Chapter sets out the background to these debates. Parts 2 and 3 then analyse the focus of the relevant literature on challenges posed by the statute and case law pronouncements on what constitutes native title, and how it is to be proven respectively. These problems are well summarised in the following quote from an anonymous Federal Court judge:

Native title is a terrible area for legal disputation, and an inappropriate matter for judicial determination. Events have occurred so far back that it is absurd: in general, courts do not allow cases to be brought on six years after the material events, and in these cases courts have conduct of events that happened in the nineteenth century, about a particular plot of land in 1829.272

Part 4 then considers the further complications suggested in the literature of a lack of coherence between the functions of the Court and the methods and outputs of experts in the humanities and social science arenas. Such a lack of coherence is consistent with Gummow J’s assertion of a lacuna in taxonomy referred to in the Introduction, namely few established ground rules for dealing with archival evidence and its interpretation and presentation in Court.273

The existence of gaps and silences in the documentary record due to the constrained focus and limited reference material of the authors, cultural attitudes and general disinterest amongst the chroniclers of the relevant eras is the subject of Part 5. This part is directed at analysing the greater need for reference to context in interpreting archival material.

Part 6 addresses the issues raised in the debates regarding contamination of the archive by the “settler history” nature of the perspectives and motivations of the author, and analyses the need for consciousness of “genre” when considering these writings.

Parts 7 and 8 consider issues which extend beyond the Australian colonial archive, of potentially erroneous conclusions of contemporary interpretations, reliability of historical sources as “objective truth,” as well as advocacy, bias and politics amongst expert witnesses and the material they rely upon. Parts 9 and 10 then analyse matters of process, namely the multiple filters across the entire inferential process of native title determinations (and therefore multiple sources of inference), and a

272 Quoted in Curthoys, Genovese and Reilly, op cit, at 61 273 Ibid, at 11

60 | P a g e potential uneasiness with the adversarial process both for social science experts and claimants themselves.

The History Wars covered many aspects of Australian history that are not relevant to the focus of this work. This Chapter seeks to analyse only those aspects that are directly relevant to the research questions (particularly for the purposes of synthesising these issues with the approaches taken in the case law) and to avoid those aspects that are not, or are only tangentially, relevant. As is apparent from the Inference Guidelines, analysis of these issues is crucial to properly identify and represent considerations of archival challenges and issues for expert witnesses, and to an extent a number of the other aspects identified therein.

1. The "History Wars" It is probably no coincidence that an upsurge in interest amongst professional historians in matters relevant to Aboriginal history in Australia predicated and accompanied developments in Aboriginal land and native title law in this country. For generations prior, the Australian academic landscape was characterised by disinterest or mere peripheral reference in Aboriginal and Torres Strait Islanders. This began to change in the 1970s, with the emergence of historical research and writing on indigenous history, and pertinently, history as it relates to rights and interests in land and waters. As stated by Ritter:

By 1971, anthropologists had documented the subtlety and complexity of Aboriginal society and land tenure. Australian historiography was undergoing a paradigm shift towards including Aboriginal and other previously marginalized historical experiences within its ambit.274

This emergence had two, interrelated, consequences. The first was the increased availability of expert opinion that could be made available to the Courts in the development of native title jurisprudence. In this regard, much has been written on the influence of such expert opinion of historians on the Mabo decision. Broome credits Australian historians with having contributed to the “climate of opinion in which the High Court found terra nullius untenable.”275 Similarly Ritter claims that “[bjoth Mabo and Wik were won with the assistance of revisionary historiography that undermined prevailing judicial wisdom.”276 For example, the role of Henry Reynolds’ work in the outcome of the Mabo and tV/7c decisions in particular has been the subject of considerable discussion and debate.277

274 Ritter, D. “The “Rejection of Terra Nullius” in Mabo: A Critical Analysis” (1996) 18(5) Sydney Law Review 5 at 15 275 Broome, R. “Historians, Aborigines and Australia: writing the national past,” in Attwood (1996), op cit, at 55 and 71 276 Ritter (1996), op cit, at 6; Moses in Manne (2003), op cit, at 351 277 Manne, R. “Introduction,” in Manne, R. Whitewash - On Keith Windschuttle’s Fabrication of Aboriginal History, Black Inc. Agenda, Melbourne, 2003 at 3; MacIntyre, S. and A. Clark, The History Wars, Melbourne University Press, Carleton, 2003 at 126; Hunter, R. "Aboriginal histories, Australian histories, and the law,” in Attwood (1996), op cit, at 12; Connor, M. The Invention of Terra Nullius - Historical and Legal Fictions on the Foundation of Australia, Macleay Press, Sydney, 2005 at 218 and 220; Selway, op cit, at 151; Van Krieken (2006), op cit, at 582 - 583; Attwood, B. Possession - Batman’s Treaty and the Matter of History, Miegunyah Press, Carlton 2009 at 297; Attwood, B. "The Law of the Land or the Law of the Land' - History, Law and Narrative in a Settler Society” (2004) 2 History Compass 1 at 16; Behrendt, L. "Forward,” in Curthoys, Genovese and Reilly, op cit, at xii; Hope, op cit; Reynolds, H. Why Weren’t We Told? A Personal Search for the Truth About our History, Viking, Ringwood, 1999 at 202. The influence of Reynolds work on the High Court in Wik v State of Queensland was summarised by Beaumont J in Anderson v Wilson [2000] FCA 394 at [290].

61 (Page The second was a self-perpetuating debate amongst historians and historical writers in relation to such matters. Coined “the History Wars,” this debate has been the subject of a vast range of literature and comment, in academic papers, books and media articles. The controversies focused on the extent to which violence was intentionally perpetrated against Aboriginal peoples through the course of colonisation and expansion of white occupation of the frontier, and the extent to which this was endorsed and promoted by those in positions of authority. Concepts such as massacres, warfare, guerilla tactics and genocide are debated in the context of attribution of guilt and questioning the legitimacy of those involved. Alongside this, the controversies also raged around the nature of traditional Aboriginal society and its ability to adapt and “progress.”

The debates extended directly into the veracity of matters the subject of native title claims, as well as other litigated matters and matters the subject of judicial and semi-judicial inquiry on Australia, chief amongst which was the “Stolen Generation” or forcible removal of Aboriginal and Torres Strait Islander children to government and church institutions.

Key players who engaged directly in the debate were generally academic historians, and to a smaller extent anthropologists and political scientists.278 However, less prominent but nonetheless important contributions relevant to native title issues came from various social science and humanities experts who have given evidence before the Courts, as well as lawyers and judges involved in the native title process, legal academics and native title claimants and indigenous commentators themselves.

The contribution of these people is analysed further in the remainder of this Chapter. These writings have been chosen for consideration because they are directly relevant to debates around native title in Australia (and to some extent similar debates in New Zealand) and, ultimately, matters for reference in the development of Inference Guidelines. Any embarkation into the more theoretical aspects of the historiography involved is beyond the scope of this thesis, and for this reason consideration does not extend to the works of pure historiographers or a consideration of the controversies amongst the different schools of thought, for example the positivist, rationalist, relativist, post-modernist and post-colonialist traditions. For the sake of completeness though, it is acknowledged that such writers remain influential upon many of the concepts considered in the debates considered here, and the works of Carr,279 Evans,280 Novick,281 and Said282 in particular are frequently referenced in the literature that is analysed below.

2. Native Title by definition Consistent with commentary set out in the ALRC Connection Report, many writers in the History Wars and associated epistemological debates have been critical of the “height of the bar” faced by native title claimants, by virtue of the requirements of the Native Title Act and its interpretation by the Courts.

278 Key players in the debates included Henry Reynolds, Robert Manne, Bain Attwood, Lyndall Ryan and Stuart MacIntyre on one side of the historiographic fence (to varying extents), and Keith Windschuttle and Geoffrey Blainey on the other. 279 Carr, E.H. What is History?, Vintage Books, New York, 1961 280 Evans, R. J. In Defense of History, Norton, New York, 2000 281 Novick, P. That Noble Dream - The “Objectivity Question” and the American Historical Profession, Cambridge University Press, New York, 1998 282 Said, E.W. Orientalism, Penguin Books, London, 2003

62 | P a g e These requirements have been said to have created an unduly onerous evidentiary burden for native title claimants, which Edgeworth argues has “dramatically reduced the potential for native title to become a ‘vehicle for change and empowerment’.”283

Bartlett has itemised the difficulties posed by s 223 of the Native Title Act and its interpretation and application as being:

• The requirement to particularise traditional laws and custom. • The precondition to ongoing societal existence to have maintained traditional laws and customs. • The requirement for continued acknowledgement and observance of such laws and customs. • Rejection of the concept that abandonment must be voluntary.284

Similar to the analyses in the various ALRC publications, much of the criticisms trace their foundations back to the importation of the concept of “traditional.” The word “traditional” is criticised by Young as being “a somewhat nebulous term, with a limited legal pedigree” which has the restrictive effect of tying Indigenous people’s rights to their history and religion.285

There are various ramification associated with these issues. First, the requirement that laws and customs be traditional imports a need for historical evidence that is onerous for a culture that did not have written records dating back to sovereignty, a fact which makes it an “absurd and unjust” demand according to Kirby.286 The challenge of this is further enhanced in that maintenance of connection requires proof of a negative factual proposition that such connection at no time ceased in the period since sovereignty. As Keon-Cohen and Seidel argue, “[t]he supreme difficulty, if not impossibility, of proving such matters in a court of law subject to the rules of evidence is obvious.”287

The need to prove a negative factual proposition is also criticised by Rose, in that it “puts ... historical scholarship, at a disadvantage” because of the “destabilizing” or “deconstruction” tactic used for “eliminating evidence and thus leaving the default position intact.”288 The effect of this is that native title claimants have the unenviable task of using a “grotesquely imperfect”289 historical record to prove maintenance of connection to the claim area, where such imperfections may lend themselves more fully to respondent submissions which throw doubt over such continuity.

Secondly, the importance of historical evidence by virtue of how native title is defined engenders the complexities that are set out below in relation to context and genre. In this sense, Attwood is critical of s 223, in that it “necessitates the production of ethnographies and histories to support such a past even though these might be contradicted by empirical ethnographical and historical records which tell

283 Edgeworth, B. “The Mabo ‘Vibe’ and its Many Resonances in Australian Property Law” in Brennan, S., M. Davis, B. Edgeworth and L. Terrill (eds), Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? The Federation Press, Sydney, 2015 at 91 284 Bartlett (2015), op cit, at 152 285 Young, S. “The Trouble with Tradition’: Native Title and the Yorta Yorta Decision” [May 2001] 30 Western Australian Law Review 28 at 37 and 49 286 Kirby, M. “Alex Castles, Australian Legal History and the Courts” (2005) 9^) Australian Journal of Legal History 17 at 12 287 Keon-Cohen, B and P Seidel, "The Yorta Yorta Native Title Claim: Litigation, negotiation, and partial settlement 1994 - 2012 & continuing,” in Bauman and Glick, op cit, at 248 - 249 288 Rose, D.B. “Reflections on the Use of Historical Evidence in the Yorta Yorta Case" in Paul and Gray, op cit, at 46 289 Walker, B. “The Legal Shortcomings of Native Title,” in Brennan, Davis, Edgeworth and Terrill, op cit, at 21

63 | P a g e a story of discontinuity and dispossession,”290 a difficulty that Attwood acknowledges is not quarantined to actions under the Native Title Act, as it was also apparent in the judgment in Milirrpum.29'1 Accordingly, even if claimants can clear the hurdle of being able to articulate their own history,292 they will then need to counter the disparities of the broader archive. It is in this sense that Ritter argues native title claimants need to “win the historiography” if they are to succeed in their claims.293 To do so, claimants will need to convince the Courts to have serious regard to the theoretical underpinnings of history294 referred to in the following parts of this Chapter.

Thirdly, the onerous nature of these requirements is said to be at odds with principles of non­ discrimination, clear and plain intention and beneficial construction, which Strelein argues are applicable to statutory interpretation as it relates to Indigenous peoples’ rights.295

Much of the criticism of s 223 amongst the historiographic debates inevitably finds its way to a critique of the interpretation afforded the section by Olney J in Yorta Yorta and appeal Courts in that matter. Case argues Olney J’s judgment constituted a departure from previous precedent, particularly from the judgment of Toohey J in Mabo given Olney J’s narrowing of Toohey J’s use of the term “occupation” and Olney J’s subordination of the claimants’ oral evidence, which had the effect of setting an impossible task for proof of traditional law and custom and maintenance of connection.296 Strelein argues that in Yorta Yorta HC the High Court went on to expand the concept of traditional, by adding the further requirements that rights and interests be sourced to pre-sovereignty normative rules, and a requirement that such normative system have a continuous existence and vitality since sovereignty (having regard to the present tense of the s 223 definition).297

Subsequent native title determinations have also come in for criticism in relation to the treatment of the definitional issues. Bartlett is critical of the imposition of the requirement to particularise the elements of traditional law and custom and of rights and interests in relation to land or waters under them by the High Court in State of Western Australia v Ward298 (Ward HC) and as taken up by O’Loughlin J in De Rose v South Australia299 (De Rose). He describes these as “a significant barrier to the establishment of native title”300 and having relegated Australian law to the status of “colonial dispossessor and of the curator in the museum.”301

Young argues that the Courts have cultivated two “excesses” in the requirements to make out the ongoing existence of native title, namely “over-specificity in the definition of the interest by reference to traditional law and custom” and “over-particularity in the application of the requirement that there

290 Attwood in Attwood (1996), op cit, at xxxvii 291 Attwood, B. Rights for Aborigines, Allen & Unwin, Crows Nest, 2003 at 306 292 Curthoys, A. and A. Genovese “Evidence and Narrative: History and Law” in McCalman, and McGrath, op cit, at 83 293 Ritter, D. “No Title Without History,” in Paul and Gray, op cit, at 81 294 Reilly and Genovese, op cit, at 42 295 Strelein (2009a), op cit, at 115; Strelein, L. “A Captive of Statute” (2009b) 93 Reform (Native Title) 48 at 50 and 51 296 Case, N. “Tide of History or Tsunami? The Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors" (1999) 4(17) Indigenous Law Bulletin 17 at 18 297 Strelein (2009a) at 77; See also Ritter, in Paul and Gray, op cit, at 91 298 (2002) 191 ALR 1; [2002] HCA 28 299 [2002] FCA 1342 300 Bartlett, R. “Humpies not houses, or, the denial of native title: a comparative assessment of Australia’s museum mentality,” (2003) 10 Australian Property Law Journal 1 at 7 and 8 301 Ibid, at 24

64 | P a g e must be some constancy and continuity in ‘traditional law and custom’ for the interest to survive.”302 Young cites the judgment of Nicholson J in Daniel v State of Western Australia303 (Daniel) as an example of the effects of such over-particularity of proof, in that His Honour adopted a “microscoped elimination process” regarding claimed rights that were not supported by evidence of specific historical and specific contemporary practices.304

Importantly for the subject matter of this thesis, Behrendt, Cunneen and Libesman accuse the High Court in Yorta Yorta HC of failing to “establish guidelines which take into account the onerous requirements placed on claimants,” which has perpetuated a difficulty which continues to be evident in later Federal Court decisions.305 Such a difficulty is relevantly described by Carter as follows:

The current interpretation of s 223(1), requiring the proof of laws and customs at the time of sovereignty, means that the inferential leaps necessary for a successful claim will be larger than those required in conventional cases.306

3. Rules of evidence and standard of proof Various authors have been critical of both the 1998 amendments to the Native Title Act which made the rules of evidence applicable in native title claims, and the lack of judicial appetite to exercise a dispensation with such rules. Ritter and Burton note that whilst Courts have been active in acknowledging the evidentiary difficulties faced by native title claimants in relation to historical matters, such acknowledgements have not translated to “some latitude in the application of s 82(1 ).”307 Osiel criticises this approach:

To insist on punctilious judicial adherence to any notion of legal formalism at such times is to guarantee the failure of courts to cultivate liberal memory when this objective is vital to successful democratisation.... By simply applying ‘the rules laid down' without extended discussion and defence of the principles on which they rest, formalist approaches to judicial process shut off the very discussions that is most needed.308

Stuckey similarly notes a lack of congruence between the evidentiary rules of the social scientist and the legal system, in that the legal system would exclude narratives constructed from verbal and written accounts under the hearsay evidence rules.309 However, beyond these sentiments, there is little justification in the literature for the suggestion that the application of the rules of evidence disadvantages native title claimants, particularly given the various exceptions to rules which allow oral

302 Young, S. The Trouble with Tradition - Native Title and Cultural Change, Federation Press, Annandale, 2008 at 4 303 [2003] FCA 666 304 Young (2008), op cit, at 234 and 235; See also Ciolek M. “Exploring Connection: Judicial Interpretation of Section 223(1 )(b) of the Native Title Act 1993 (Cth)” (2006) 10 Australian Indigenous Law Reporter 14 at 24 305 Behrendt, L. C Cunneen and T. Libesman, Indigenous Legal Relations in Australia, Oxford University Press, Melbourne, 2009 at 203. De Rose v State of South Australia [2002] FCA 1342 is specifically cited by those authors in this regard. See also Strelein (2009a), op cit, at 149 306 Carter, op cit 307 Ritter, D. and T. Burton “Native Title Claims Before the Court: Proof and Evidence” in Neate, G. (ed) Native Title, LexisNexis-Butterworths, Chatswood, 2000 at 946.15 - 946.16, with reference to Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at paragraph 388 308 Osiel, op cit, at 298 309 Stuckey, M. “Not by Discovery but by Conquest: The Use of History and the Meaning of ‘Justice’ in Australian Native Title Cases,” (2005) 34 Comm. L. World. Rev. 19 at 26

65 | P a g e and expert evidence as mentioned in Chapter 1. Indeed, some commentators have suggested it is not clear that the amendments to apply the rules of evidence have had any significant effect.310

What is more controversial is the extent to which the relevant standards of proof demanded by a Court, and those accepted by anthropologists, historians and other experts in native title claims, are reconcilable. Conflicting standards of proof feature heavily amongst the controversies of the History Wars, with various authors suggesting that the standards of proof adopted in the Courtroom are much higher than those used in the social sciences and humanities.311 However, other authors have been more willing to concede an equivalence between these standards, to the extent that Evans felt satisfied as an expert witness in the defamation proceedings brought by David Irving against Deborah Lipstadt, in that “(t)he outcome rested not on proof of guilt beyond reasonable doubt but - as in history - the establishment of a case on the balance of probabilities.”312

Bruce, who has been an expert witness in native title matters, similarly argues there are similarities between the judicial process and the standards adopted by social scientists, in that “(i)n none of these disciplines can we be absolutely certain about the truth of a matter, but there are modes of interpretation that lead us to the next best thing.” Litchfield favours a mode aligned with hermeneutics, a historiographic approach grounded in the application of interpretative techniques (built on common sense) to historical evidence, with particular reference to understanding the past in light of present experience. This is underpinned by a sense that knowledge is always partial. That author attributes the judgments of Brennan J in Mabo and Gummow J in Wik as having adopted this mode,313 in contrast to Blackburn J’s judgment in Milirrpum and Olney J’s judgment in Yorta Yorta, which he alleges both sought out absolute and objective facts from the historical evidence.314

Other writers have found a continuity between the respective approaches of the law and the humanities/social sciences. In the social sciences, Shaw describes the relevant mode as inductive reasoning or the phenomenological approach, “where a number of observable facts are brought together to give a comparatively rounded overview of the whole proceedings.”315 In legal proceedings, the mode adopted is one of “inference following a pattern of syllogistic argument and cross- referencing.”316 This is discussed further in Chapter 6 in relation to theories of inference. Shaw argues

310 Curthoys, Genovese and Reilly, op cit, at 79 311 See for example the debates amongst Windschuttle and Attwood in relation to frontier massacres, in Attwood, B. Telling the Truth About Aboriginal History, Allen & Unwin, Crows Nest, 2005 at 36, 46 - 47, 74, 119, 182 and 187; Ryan, L. “Waterloo Creek, northern New South Wales, 1838” in Attwood and Foster, op cit, at 35; Mulvaney, D.J. "Barrow Creek, northern Australia, 1874,” in Attwood and Foster, op cit, at 44; Manne, R. Left Right Left - Political Essays 1977 - 2005, Black Inc, Melbourne, 2005,, at 320; Attwood in Attwood (1996), op cit, at xxxviii; and Choo and Hollbach (1998/1999), op cit, at 8 312 Evans (Oct., 2002), op cit, at 340. Contrast Evans’ view regarding how historians’ standards compared to the criminal standard of proof, at 338 313 Litchfield, J. “Mabo and Yorta Yorta: Two Approaches to History and Some Implications for the Mediation of Native Title Issues” (2001) 3 National Native Title Tribunal Occasional Papers Series at 5 - 6, 8 and 10. Brennan J did so, according to Litchfield, by reference to “aspirations to universal values and (human) rights” to conduct “a hermeneutic process by skillfully conducting a conversation between the common law, a broad range of historical events, and contemporary values.” - Ibid, at 10; Attwood in Attwood (1996), op cit, at xvii 314 Litchfield, op cit, at 4 and 6, with reference to Milirrpum v Nabalco (1971) 17 FLR 141 315 Shaw, B. "Bringing the numinous into the witness stand” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 8 and 13 316 Ibid, at 6 - 10; with reference to Ligertwood and Edmond, op cit

66 | P a g e these modes have much the same features because “we cannot do more than approximate the ideal because this is an uncertain world.”317

But an acceptance that the social sciences and humanities on the one hand, and the Courts in their civil jurisdiction on the other, may have similar approaches to standards of proof, is not the end of this matter for the relevant controversies. The principle that the balance of probabilities is applied as a sliding scale318 raises two separate issues in the relevant historiographic material. Firstly, the gravity for the claim group of a finding of loss of connection is severe - not only in relation to a finding that native title does not exist (and the loss of future economic and cultural benefits associated with this), but also in relation to matters of identity and personal responsibility. As Reilly argues, given a native title determination may hold “that a community is not who they claim to be, or their laws and customs are not of a traditional nature,” the sliding scale applied should be carefully applied.319 Further, a native title determination is a finding in rem so the consequences extend beyond the claim group as constituted or the claim as argued in the particular application, so weight afforded to evidence should also be considered with that context in mind.320

Secondly, the sliding scale should be applied having regard to the difficulties of the evidentiary burden and the nature of the evidence available. Curthoys and Genovese cite an example of this being Merkel J’s judgment in Shaw v Wolf,32'' in which His Honour was willing to accord greater than usual weight to community recognition and family oral histories told over generations, because of the inadequacy of nineteenth century written records.322

A further matter for consideration in relation to proof of native title is the unusual status of fact-finding in appeals in such matters. With particular reference to the De Rose v South Australia323 (De Rose FC), Burke states the Full Federal Court indicated they were not disturbing a finding of fact but an inference made from the facts. This is discussed further in Part 2 of Chapter 8. Fact-finding therefore now seems to have become a shared responsibility between the trial judge and appeal courts due to the “fundamental indeterminacies in the key concepts of the legal doctrine of native title. The effect of this qualification is that, although appeals are meant to be restricted to questions of law only, appeals in native title can reopen many issues.”324

4. Lack of coherence of functions and method Similar to the debates around the contrasting standards of proof amongst Courts and the humanities/social sciences, is the suggestion that there is a lack of coherence in the functions and methods of the Courts and academic historical enquiry in relation to the concept of facts and in reaching positions of finality. For this reason, it has been suggested by a number of authors (both

317 Ibid, at 9; See also Shaw in Choo and Hollbach (2003), op cit, at 99 318 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 319 Reilly (2000), op cit, at 467 320 Wooten, H. “Conflicting Imperatives: Pursuing Truth in the Courts," in McCalman and McGrath, op cit, at 20 321 [1998] FCA 389 at [116] - [118] and [125] 322 Curthoys, Genovese and Reilly, op cit, at 212 323 [2005] FCAFC 110 324 Burke, P. Law’s Anthropology - From ethnography to expert testimony in native title, ANU E-Press, Canberra, 2011, at 237

67 | P a g e social scientists and former judicial officers) that any alignment between the work of the professional historian or anthropologist (and other social scientists and humanities experts who may be called upon to give evidence), and the purpose and approach of the Courts is an uneasy one.325

Judicial proceedings are constituted to make findings regarding substantive rights based on facts rather than historical truth, and must resolve a dispute with an intended finality.326 The Court’s concern with evidence of the past is in the context of the rights of a party being reliant on the occurrence of a certain event or state of affairs.327 Social scientists, however, seek the truth but do not have to make definitive findings - and can revisit findings after new evidence or a new interpretation comes to light. Thus historians do not provide authority - everything can be contested and is contestable.328 The former chair of the Waitangi Tribunal summarised the issue thus - “History is argument without end and law is the end of argument.”329

The majority of commentators from the anthropological and historical disciplines tend to downplay the concept of facts and the potential of ever reaching a final or certain position. Edmond puts this in the context of other disciplines:

For, if natural scientists experience difficulty attaining the idealized standards conventionally associated with the empiricist forum then it would be curious if the same standards were attainable or applicable, without serious qualification, to other types of specialized knowledge and expertise - especially those disciplines which study human society and culture employing more interpretative, or hermeneutic, methods.330

The inferential process called for in the judicial system, particularly in relation to requirements for experts to make clear and distinct statements of fact and separate opinions drawn therefrom, has been argued by some to be at odds in relation to anthropological methods. Indeed, Palmer notes that anthropological opinion as to the nature of the relevant society at the time of sovereignty is largely speculative,331 as “an anthropology of social relations or meaning is complex and comprises many strands of knowledge and interpretation,”332 and is determined with “reference to an epistemology that may not readily separate ‘fact’ from ‘opinion’ or ‘interpretation’ from field data.”333 More expansively, Palmer argues:

325 Perhaps the most famous of such suggestions is that of Rousso, in the course of objecting to being called as an expert witness in the Bordeaux Assizes Court trial of Maurice Papon - see Wilson, op cit, at 913 326 Although it is conceded that the Native Title Act s 13 provides for applications to be made to vary or revoke an approved determination of native title where events have taken place since the determination was made that have caused the determination to no longer be correct, or if the interests of justice require the varation or revocation of the determination, and that various such applications have been made, including one successfully {Talka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40) and as at the date of this thesis, one application is on foot (Yindjibarndi Aboriginal Corporation RNTBC v State of Western Australia WAD215/217 filed 15 May 2017). 327 Wooten in McCalman and McGrath, op cit, at 17 - 18 and 29 328 Ibid, at 19, 29 329 Durie, E, quoted in Williams, J. ‘Truth, Reconciliation and the Clash of Culture in the Waitangi Tribunal,” [2005] ANZLWE- Journal 234 at 236 330 Edmond, G. “Thick Decisions: Expertise, Advocacy and Reasonableness in the Federal Court of Australia” (2004) 74 Oceania 190 at 210 331 Palmer (2011), op cit, at 8 332 Palmer (2007), op cit, at 10 333 Palmer (2011), op cit, at 14

68 | P a g e Anthropologists develop ways of understanding social relationships, based upon that data and their theoretical or paradigmatic assumptions which are part of the training of their discipline. They do not simply present raw data or iterate the words of those with whom they worked. There is a vital step between the presentation of the data and the articulation of its interpretation. Such a step, characterised by the moulding of the material consistent with theory or paradigm renders the opinion substantially different to the data.334

Similarly, Burke disavows the legal conception of a fact, in that it “tends to bypass the issues of the linguistically mediated nature of most evidence.”335 Further, that author points to the satisfactory end­ point in the social sciences and humanities, of “interpretative indeterminacy,” which means the ability for more than one interpretation to be drawn from the same evidence.336 Alternative possibilities and competing accounts are acceptable to practitioners in these disciplines.337 History is indeterminate, and historical and anthropological interpretations and conclusions are always merely provisional and will inevitably be subject to new perspectives and interpretations through later analyses.338

Courts, on the other hand, limit the totality of the evidence and construct “an interpretative finality.”339 In a Court, facts are evaluated according to the most plausible narrative of events,340 through adopting “encapsulating generalisations and agreement to ‘commonsense’ observations.”341 The imperative to do so is because such disputes “must be resolved no matter how evenly balanced the arguments are for favouring one version of the past over another.”342 In doing so, the judge does not have a role of resolving the professional debates of the humanities but rather applies legal interpretation and fact construction to “produce the official (and authoritative) account - the judgment - [which] privileges judicial perspectives.”343

The efficacy of native title determinations has been criticised in the literature as a consequence of such lack of coherence. For example, Stuckey describes the joint judgment of Black CJ and Sackville J in Anderson as “dispute resolution oriented, rather than truth oriented.”344 More broadly, Reilly and Genovese argue “the promise of native title through the operation of the law suffers from the illusion of a determinate past,” and that a “metahistory” of an entirely knowable past is distinctly captured in native title jurisprudence.345 Again drawing on Gummow J’s "taxonomy” reference, Reilly argues:

One of the key dilemmas in establishing a taxonomy of principles for the use of history in law is that, at the beginning of the 21st century, there is no settled version of history that the law can unquestioningly draw upon.346

334 Palmer (2007), op cit, at 6 335 Burke (2011), op cit, at 18 336 Ibid, at 64 337 Curthoys, Genovese and Reilly, op cit, at 16 -17 338 Sherry, S. “The Indeterminacy of Historical Evidence” (1995-1996) 19 Harv. J.L. & Pub. Policy 437 at 441; Byrnes, G. “By Which Standards? History and the Waitangi Tribunal: A Reply” (2006) 40(2) New Zealand Journal of History 214 at 225; Attwood (2005), op cit, at 161; MacIntyre and Clark, op cit, at 13 339 Burke (2011), op cit, at 94 340 Reilly (2006), op cit, at 29 341 Burke (2011), op cit, at 227 342 Reilly (2006), op cit, at 32 343 Edmond (2004), op cit, at 215 and 218 344 Stuckey, op cit, at 30 345 Reilly and Genovese, op cit, at 37 346 Reilly (2006), op cit, at 42

69 | P a g e From the judges’ perspectives, there is a mixed reaction. Former Chief Justice Mason has acknowledged that there “is no one ‘right’ view of Australian history.”347 However, former Justice Finn has a more reserved approach to how the heated disputes in the social sciences may be subjected to judicial adjudication:

In one native title appeal in which I participated, we were in effect being asked to decide between critics and advocates of post-modern historiography. Needless to say, interesting and venomous as that dispute may have been, we declined the invitation to make fools of ourselves.348

Such is the potential for misalignment of purpose and method, that some commentators have been moved to ask whether issues of redress arising from historical circumstance belong in the Courts or are they more appropriately the domain of a political solution?349 However, Burke identifies a level of symbiosis between the way the Courts adopt evidence from anthropologists, historians and others. He identifies a number of ways in which the judicial process and social science interacts, including “in an act of digestion, in which law converts anthropology into what it needs for its own functioning. Thus anthropological knowledge is converted into a legal fact.”350 The other interaction is “collusion,” whereby “judges look to science to share the burden of responsibility for difficult decisions.”351 Similarly, Morton acknowledges that whilst “[tjhere are substantial differences between anthropology and the law ... there is common ground in relation to the use of reason and evidence in assessing what is likely to be true or false” through reliance on acceptable standards of proof which accommodate that findings need not be made based on absolute certainty.352

5. Context, gaps and silences in the documentary record Gaps and silences in an historical record of Aboriginal and Torres Strait Islander presence in Australia are likely to be inevitable, as theirs was an oral culture that did not create literary sources. As Curthoys, Genovese and Reilly argue “Australian legal history, as far as cases involving Indigenous parties are concerned, is about absence, about what is not available.”353 This requires the Court to create “an approximation of the past” through a process of inference from surviving material traces, of which there are few and “no witnesses with memories of the events in question.”354 As a consequence, if documentary evidence is required to establish matters relevant to proof of native title, “then claims in all parts of Australia may face an insurmountable obstacle.”355

347 Mason, Sir Anthony, “Foreword” in MacIntyre and Clark, op cit, at viii 348 Finn, P. “A Judge’s Reflection on Native Title” in Brennan, Davis, Edgeworth and Terrill, op cit, at 28 349 Wooten, in McCalman and McGrath, op cit, at 33 - 34; Similarly Kirby (2005), op cit, at 13; Finn, op cit, at 242; Van Krieken, R. "Is Assimilation Justiciable? Lorna Cubillo and Peter Gunner v Commonwealth" (2001) 23 Sydney L Rev. 239 at 240 - 241 350 Burke (2011), op cit, at 24 351 Ibid 352 Morton, J. “Working with, for and against the Act: Anti-anti-positivism and native title anthropology,” in Bauman, T (ed), Dilemmas in Applied Native Title Anthropology in Australia, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 2010, at 18 353 Curthoys, Genovese and Reilly, op cit, at 141 354 Carter, op cit 355 Reilly and Genovese, op cit, at 33

70 | P a g e However, this is exacerbated in a native title sense in that the archive can only ever reflect what has been observed. Traditional law and custom as recorded in documentary histories may be flawed by the fact the practice of them may have been actively concealed from observers due to their private, culturally sensitive and secret nature, as “both an important part of Aboriginal cultural life, but... also ... as a defence mechanism against social and cultural colonisation.”356 This may result in the recorded behavior of Aboriginal people being an “atypical manner due to the presence of the European observer” and in any case, “the observer is unlikely to understand what he or she is observing.”357 This is also susceptible to error in the recordings given differences in language, which is “critical since conceptual frameworks are preserved in language and often there are words for which there are no real equivalents in another language.”358

Further exacerbating this condition is the general disregard of or superficial reference to Aboriginal history amongst the Australian academy prior to more recent times (and certainly over the vast majority of the period for which native title claimants must evidence continuity of connection to the claim area). Interest and instruction on Australian History prior to the late 1960s was grounded on what anthropologist W.E.H. Stanner branded “the Great Australian Silence” - the lack of Aborigines featuring at all in Australian popular history, in particular a “cult of forgetfulness practiced on a national scale” and the relegation of Aborigines in Australian history to a "melancholy footnote.”359 Similarly, Reynolds argues that prior to 1960, Australian historians were “more interested in writing heroic tales than in confronting the legal and ethical problems underlying the process of colonization.”360

When considering these factors as a whole, Curthoys, Genovese and Reilly “question the fairness of establishing a legal definition of native title that requires the use of colonial archives to establish a claim to native title.”361

The challenge for native title claimants and their representatives, and ultimately the Court, is therefore to overcome the gaps and silences in the historical record which might otherwise suggest an absence of Indigenous people from the land, so as to meet the continuing connection requirements for proof of native title.362 This can be achieved through contextualizing and explaining the silences,363 evaluating historical documents for internal consistency,364 through “drawing on various perspectives offered by the texts, bringing together the patterns or schematized views”365 and by intertextuality,366 which involves “looking at what was happening elsewhere in the wider region at the same time or by making educated guesses on the basis of knowledge available for other areas further afield.”367 Carter argues

356 Choo and Hollbach (1999), op cit, at 8; McGrath, A. “’Stories for Country’: Aboriginal History and Land Claims” in McCalman and McGrath, op cit, at 253; Hollbach, S. and C. Choo’ "History and native title: a brief overview,” in Choo and Hollbach (2003), op cit, at 11; Curthoys, Genovese and Reilly, op cit, at 205 357 Reilly (2000), op cit, at 464 358 Attwood (2005), op cit, at 159 -160 359 Stanner, W.E.H. The 1968 Boyer Lectures: After the Dreaming, ABC, Sydney, 1969, at 7, 24 - 25 and 53 360 Reynolds (1999), op cit, at 164 361 Curthoys, Genovese and Reilly, op cit, at 84 362 Barker, M. QC. ‘Working as a Barrister on the Miriuwung Gajerrong Native Title Claim” in Toussaint, op cit, at 165; Curthoys, Genovese and Reilly, op cit, at 83; Read, P. “The Stolen Generations, the historian and the court room” (2002) 26 Aboriginal History 51 at 55 363 Choo, C. Working as a Historian on the Miriuwung Gajerrong Native Title Claim,” in Toussaint, op cit, at 196 364 Neate, in Horrigan and Young, op cit, at 314 - 315 365 Choo and O’Connell in Paul and Gray, op cit, at 19 - 20 366 Ibid, at 17 367 Gara, in Paul and Gray, op cit, at 73; Ginzberg, op cit, at 84

71 (Page that historians can assist the Court in these regards, by “providing generalisations of knowledge that can influence both the selection of evidence and the inferences drawn from the evidence.”368 Filling the gaps can also be achieved through the analysis and weighting of the archive in the context of claimant oral evidence which addresses the same matters.369

All of these approaches come back to an examination of the context that the relevant recording was made in. But as Curthoys, Genovese and Reilly argue, the law and historians take very different approaches to these matters:

historians read documents in their cultural context - who produced it, when, why and so on [whereas] the court may reject contextual information as irrelevant, preferring to rely on the evidence as it appears on the face of the material presented to it.370

An example of this, according to Reilly and Genovese, is the approach to the archive and disregard for the reflexive, contextual and non-objective characteristics of historical practice in Yorta Yorta HC, which those authors described as “the worst of antiquarianism.”371

The remedy for this is for the Courts to allow a broader role for expert witnesses, which goes beyond the narrow “nothing but the facts” approach to putting archival sources before the court,372 to expose the historiographic biases in the written record.373 To do this, argues Osiel, judges must allow the parties to paint with a broader brush to flesh out competing versions of history and contextualise versions of historical arguments.374 However, as Ginzberg notes, the challenge is that a judicial perspective may not be favourable to the integration of scattered fragments of evidence by reference to context,375 a risk that Skyring argues is magnified in the adversarial system, which has a preference for “history devoid of critical analysis.”376 Stuckey is critical of the approaches of Olney J in Yarmirr v Northern Territory of Australia (No 2)377 (Yarmirr) and in Yorta Yorta, and the Full Federal Court in Anderson, as well as that of McEachern CJ in Delgamuukw for adopting approaches which precluded reference to context from the broad sweep of history.378

A useful example of how experts can use context to arrive at findings favourable to the existence of native title is Reynolds’ The Law of the Land. This includes an interpretation of the imperial authorities’ intentions in the context of key participants’ actions in general humanitarian causes elsewhere,379 and the motivations behind the establishment of reserves, access rights and education and welfare provisions.380

368 Carter, op cit 369 Vincent, E. and C. Land "Silenced Voices” (October - November 2003) 67 Arena Magazine 19 at 21 370 Curthoys, Genovese and Reilly, op cit, at 16 -17; See also Stuckey, op cit, at 27 371 Reilly and Genovese, op cit, at 36 372 Skyring, F. “History Wars - Debates about History in the Native Title Process,” in Choo and Hollbach (2003), op cit, at 75; Curthoys, Genovese and Reilly, op cit, at 89 373 Reilly (2000), op cit, at 472 374 Osiel, op cit, at 296 375 Ginzberg, op cit, at 90 376 Skyring, in Choo and Hollbach (2003), op cit, at 73 and 76 377 (1998) 156 ALR 370 378 Stuckey, op cit, at 33 379 Reynolds, H. The Law of the Land, Penguin Books, Ringwood, 1992 at 124 and 181. See also Reynolds, H. Frontier, Allen & Unwin, St Leonards, 1996 at 141 - 153, 174 - 175; Broome, R. Aboriginal Australians: Black Responses to White Dominance: 1788- 1994, Allen & Unwin, St Leonards, 2002 at 53 380 Reynolds (1992), op cit, at 125 and 139

72 | P a g e In relation to assessments of broader regional history context for the purposes of s 223, Gara gives as examples “analysis of the nature and effects of frontier violence, the pattern of settlement, the influence of government policies, missions and other European interests and other cultural, environmental and political factors.”381

De Rose and De Rose FC showcase examples of how the same context may be given differing weight and meaning. Strelein argues that notwithstanding a willingness to draw inferences, O’Loughlin J’s judgment was contextually deficient due to His Honour’s inability to appreciate the dispossessing impacts of land and employment policies of the relevant period, and disregard of expert evidence which is not corroborated by clearly articulated oral evidence from the claimants.382 In contrast, the Full Federal Court had greater regard to contextual factors such as law and custom observance across the broader regional area, claim area specific knowledge of law, absences being relatively recent and short, the active protection of cultural heritage sites, and the pastoral lessees having sought to exclude the claimant group through intimidation.383

6. Genre and "Settler history" Above and beyond the gaps and the silences in historical archive in Australia, its very nature often lends itself to chronicling through a particularly Eurocentric view. This is due to the nature of the frontier under consideration; the motivations (express or ulterior), qualifications (or lack thereof) and demographics of the writers themselves; and the political and socio-economic perspectives of the era. As a history recorded by the colonisers or settlers, it has the potential to take form according to these factors and intrinsically become a “settler history,” which constitutes:

fleeting snatches of time which have become immortalised through their recording. As such they provide an artificial or stilted picture of these lives, capturing only the parts which were observed by the Europeans who made these records for their particular purposes.384

As the evidence of continuity of connection is traced further back into the time period that must be covered, the likelihood that this will come from the recordings of lay observers increases - limited to the white incomers themselves,385 in contrast to experts who have had the benefit of broader historical training or, indeed, the writings by or transcripts from traditional owners themselves.

Even where the exercise of traditional laws and customs has been witnessed, the record may well be detracted from due to the writer’s lack of qualifications to understand what is being observed.386 In this sense, as Ray argues, “the frontier messes mischievously with that conventional division between primary and secondary sources, between contemporary and reminiscent ones, between eyewitnesses and hearsay, between presence and absence.”387 The impact of such a lack of qualifications can be

381 Gara, in Paul and Gray, op cit, at 68 382 Strelein (2009a), op cit, at 90 - 91 and 93 383 Ibid, at 93 384 Choo, C. quoted in Curthoys, Genovese and Reilly, op cit, at 103 385 Clendinnen, I. “The History Question - Who Owns the Past?” (2006) 23 Quarterly Essay 1 at 26 386 Reilly (2000), op cit, at 464 387 Griffiths, T. "The Frontier Fallen” (March 2003) Eureka Street http://www.eurekastreet.com.au/articies/0303qriffiths.html (accessed on 23 January 2008)

73 | P a g e magnified by the political beliefs and socio-economic prejudices common to the era under consideration, which have significant potential to colour the observations recorded. Such records are susceptible to ethnocentrism, being the “unreflective judging of other societies and cultures in terms of one’s own.”388 As Palmer argues, such complications are not limited to historical works but also impact on the “interpretations of interpretations” involved in reconstructive anthropology.389

Heydon, whose work is considered in more detail in Chapter 7, also identifies various deficiencies in the archival record (specifically as it relates to consideration by the Courts), as follows:

Nor is [historical records’] location in archives any guarantee of their indisputable accuracy: their survival may have been haphazard, they may have been forged, and in themselves they may signify little except after interpretation by persons possessing the skills of historians and other related skills. In short, primary historical materials are not easy for non-historians to deal with, particularly without assistance from the parties.390

Such matters have also been referred to by various participants in the History Wars, with Reynolds acknowledging the power and authority of the written word that European records held over Aboriginal stories,391 whilst Windschuttle has been criticised for have a “misplaced faith in the documents he uses as giving a complete account of what was happening on the frontier.”392 But an even more prevalent issue in the History Wars relevant to “settler history” is the influence of prevailing theories of political economy, particularly in relation to societal progression, land use, population pressure, and the benevolence of authorities. Rowley noted these factor were to trigger some “special legal consequences”393 in relation to how colonial authorities recognised the Aborigines’ existing rights, and accordingly the mode of colonisation that was to take place. Such theories have found favour in the writings of various authors, including Blainey394 and Dawson.395 Attwood argues these theories pervade the archival records and severely limit the extent to which traditional laws and customs are recorded in their entirety, thereby having their own "colonising effect.”396

Other authors are at pains to demonstrate the ability of early Aboriginal society to, as Loos says, “accommodate the European intruders within their world view and, in the process, modify it.”397 Reynolds similarly contends that the Aborigines “endeavoured to incorporate new experiences within the resilient bonds of traditional culture” rather than “a rigid and unchanging Aboriginal society unable to cope with the new challenges and which consequently collapsed suddenly and completely under

388 Rigsby, B. “Representations of Culture and the Expert Knowledge and Opinions of Anthropologists” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 4; Gray in Paul and Gray, op cit, at 34 389 Palmer (2011), op cit, at 8 390 Heydon, op cit, at 213 301 Reynolds (1999) at 101 - 102 302 Hirst, J. Sense and Nonsense in Australian History, Black Inc Agenda, Melbourne, 2005 at 81; See also Moses, A.D. “Revisionism and Denial” in Manne (2003), op cit, at 354 393 Rowley, C.D. The Destruction of Aboriginal Society, Pelican, Ringwood, 1974 at 14 394 MacIntyre and Clark, op cit, at 130 395 Dawson, J. Washout - On the Academic Response to the Fabrication of Aboriginal History, Macleay Press, Sydney, 2004at 4 and 75 396 Attwood. in Attwood (1996), op cit, at viii to xii 397 Loos, N. “A Chapter of Contact: Aboriginal-European Relations in North Queensland, 1606-1992,” in Reynolds, H. (ed) Race Relations in North Queensland, James Cook University, Townsville, 1993 at 10; See also Reynolds, H. The Other Side of the Frontier - Aboriginal Resistance to the European Invasion of Australia, Penguin Books, Ringwood, 1995 at 2; Broome, op cit, at 140; McGrath "History and Land Rights,” in McCalman and McGrath, op cit, at 245

74 | P a g e the pressure of alien intrusion.”398 Drawing on the writings of explorers (ironically, given the discussion below, including Edward Curr), Reynolds seeks to exhibit how Aborigines adapted their traditional law and custom to respond to and incorporate aspects of European customs and methods, including use of tools, linguistic changes, painting, music and dance, domestic animals and food.399 The historical record evidences that they did so, he argues, such that “[c]ontinuity and change ran like an intricate plait through the history of early contact.”400 Whilst “traditional beliefs ... continue to display a strength and resilience,” the Aborigines “showed themselves just as capable of adapting to altered circumstances.”401

Similar issues arise in relation to anthropological evidence. Glaskin argues that the law’s “little place for indeterminacy” can transform anthropological work in “recording genealogies, working out kinship, principles of land tenure, descent and inheritance” into “reified rules ... [of] absoluteness and systemacity.”402 As a result, the combined work of the anthropologist and the Court has the potential to reify aspects of culture in a given moment without regard to the “indeterminacies of everyday social life,” which in turn objectifies Aboriginal identity and culture in a manner that disregards dynamic systems of laws and customs403

These debates are important because, as discussed in Chapter 1, for the Court to accept adapted or evolved rights and interests as still constituting ones that arise through the acknowledgement and observance of traditional law and customs, such rights and interests must have their roots in such traditional laws and customs. The inferential process of a decision maker who has reference to an archive dominated by such views of political economy may be influenced by such views if they are not adequately tested.

Furthermore, there is the general tendency in historical accounts of nation building to emphasise the dramatic events in history, such as conflict and how this was resolved. The result can be a lack of acknowledgement of the power relations in which the recording was made, whereby “the official version of events [namely those created by the colonisers] dominates the narrative” in a manner which “downplays Indigenous peoples’ agency and cultural survival.”404 In this way, Attwood argues the official history “was not only the coloniser’s discourse; it was also a colonizing one.”405 It can also result in a focus on discontinuities more so than continuities, the ultimate effect of which is to overstate the impact of the extinction of native title.406 As Curthoys, Genovese and Reilly argue:

There was an assumption by the colonisers in the nineteenth century and early twentieth century of the inevitability of Aboriginal extinction. As a result, the historical record has tended to focus on the extinction of Aboriginal culture, not on its survival in the face of colonisation.

398 Reynolds (1995), op cit, at 2 399 Ibid, at 8, 30-60, 105, 154-155, 162- 166, 172, 176 and 180 400 Ibid, at 53 401 Ibid, at 166 402 Glaskin, K. “Litigating native title: Anthropology in the Court,” in Bauman, op cit, at 44 to 45 403 Ibid, at 45 404 Skyring, in Choo and Hollbach (2003), op cit, at 75 405 Attwood in Attwood (1996), op cit, at viii; Hemming, S. “Taming the Colonial Archive: History, Native Title and Colonialism,” in Paul and Gray, op cit, at 61 - 63 406 Reilly (2000), op cit, at 465

75 I P a g e The very presence of Aboriginal peoples in the archives suggests a degree of dislocation from traditional lands.407

Further, archival records are not written for the purpose of use as evidence in native title claims. Much history was not written with the intention that the documents would be interpreted so as to affect the rights of real people or with the needs of litigation in mind.408

These issues have been noted as posing particular challenges for specific native title claims. Pearce argues that the “mainstream [as opposed to “Aboriginal”] view of Australian history was evident in many of the expert witness submissions we saw in native title cases litigated by the previous [Western Australian] government.”409 Again, perhaps the most commented on example is in relation to Yorta Yorta. Irvin suggests that “historical assumptions in relation to the ‘settled south’” may have unwittingly influenced the Court’s consideration of the evidence in that case.”410 Such assumptions are that traditional Aboriginal people live in northern Australia, whereas in southern Australia only non-traditional Aboriginal people live, with the effect of such premise that continuity of connection is lost in those “settled” areas.411 As a consequence, there is an even greater need for contextual analysis, reflexivity and familiarity with Indigenous versions of history in native title claims in south­ eastern Australia.”412

These criticisms largely relate to the weight Olney J afforded the evidence tendered by the respondents, in the form of the published works of settler Edward Curr, over oral evidence from the claimants.413 This was not only in relation to continuity of connection, but also regarding the content of traditional laws and customs.414 Keon-Cohen and Seidel describe Olney J’s judgment as a travesty given it was largely based on the “necessarily ethnocentric written account of an inexperienced European squatter.”415 Rose highlights the “settler history” nature of the evidence which Olney J afforded so much weight, in that the author of the evidence was a dispossessor himself who promoted his own “justifying ideology for colonisation,” was not historically trained and did not account for his methodology.416 That author also notes that Olney J was guided by “common tropes” from the theories of political economy referred to above.417 Rose also observed the level of reliance Olney J placed on Curr could have had the result that, had native title been determined to exist, this would not have included rights and interests to care for sacred sites, as Curr’s writings make no reference to the

407 Curthoys, Genovese and Reilly, op cit, at 83 408 Wooten in McCalman and McGrath, op cit, at 32; Ray, A.J. “Expertise in Aboriginal Title Claims Litigation in Australia and North America, 1946 - 2002,” in McCalman and McGrath, op cit, at 103; Reilly (2000), op cit, at 464 409 Pearce, D. “The transmission of stories, history and cultural knowledge within the Noongar community is alive and well,” in Choo and Hollbach (2003), op cit, at 59 410 Irvin, Z. "A Comparative Analysis of Historical Assumptions in the Yorta Yorta and Single Noongar Decisions” (December 2006/January 2007) 6 (24) Indigenous Law Bulletin 24 at 24 411 Owen, C. quoted in Skyring in Bauman and Click, op cit, at 341. See also Ritter in Paul and Gray, op cit, at 85; Ketley, H. and C. Ozich, “’Snapshots of adventitious content’ The assessment of oral and historical evidence in native title claims,” in Choo and Hollbach (2003), op cit, at 87; Attwood in Attwood (1996), op cit, at xxvi, 110 and 112-113 412 Hemming in Paul and Gray, op cit, at 54 413 For completeness though, there are instances on both sides of the History Wars divide of positive reviews of Curr’s role in recording history. See Blainey, G. Triumph of the Nomads, Pan MacMillan, Sydney, 1997, at 97; Windschuttle, K. The Fabrication of Aboriginal History, Volume One, Van Diemen’s Land 1803 - 1847, Macleay Press, Sydney, 2002, at 332; Reynolds (1995), op cit, at 40 and 61; Reynolds (1996), op cit, at 11; Reynolds, H. “The written record,” in Attwood and Foster, op cit, at 86; Broome, op cit, at 51 and 655 414 Reilly (2000), op cit, at 461 415 Keon-Cohen and Seidel in Bauman and Click, op cit, at 251 416 Rose, in Paul and Gray, op cit, at 39 417 Ibid, at 40-43

76 | P a g e existence of sacred sites.418 Further, as pointed out by Case, the works by Curr were compiled some 32 years after the events they purport to record.419

Attwood describes Curr as being “profoundly ignorant” of the relevant Aboriginal culture,420 whilst Manne alleges Curr “spoke of the necessity of a policy of extirpation.”421 Reilly suggests Olney J’s methodology for use of historical evidence has the result of perpetuating of colonialism.422 Gray describes the “selective and partial use of material extracted from nineteenth century ethnographic texts to support the opposition case” as “a type of analysis which would be considered dishonest scholarship in an academic setting.”423 Van Krieken notes that it would be a rare practice in history to grant the degree of authority that Olney J did to a single participant's narrative.424 Similarly Litchfield claims that Olney J’s judgment was flawed because it “did not test the potential weakness in every text.”425 Expert historical evidence could have assisted Olney J to avoid these pitfalls, argues Carter, through providing different generalisations with which to assess the evidence, with the result that Olney J may have been less inclined to draw the inference that the observance of traditional law and customs had ceased by the mid-nineteenth century.426

Reilly and Genovese attribute the same criticism of accepting the historical record at face value to Branson and Katz JJ on appeal in Yorta Yorta FC. However, Black CJ’s minority decision in the Yorta Yorta FC is said by Carter to provide “an indication that different generalisations may have supported a different inferential analysis,” having regard to His Honour’s “awareness of the limitations of colonial records.”427

Stuckey comments that Olney J’s reliance on Curr undermines the suggestion by Gummow J in Wik that there is no taxonomy regarding the use of history in Australian Courts, although it is merely a basic level of recognition and “one which permits a worrying degree of judicial evaluative practices.”428

The challenge for the Court then is to be conscious of the “genre” or what an historical text was written for and the applicable writing conventions and common tropes,429 with vigilance that written histories reflect the perspectives and culture of the recorder - often the colonisers rather than the colonised. In meeting this challenge, the evidence needs to be marshalled and interpreted in a way, as described by Hemming, so as to explain the “relationship between the record, the historical experiences of Indigenous People and the contemporary cultural and political reality.”430 This requires an exercise in reading the sources “against the grain,” which as Skyring (who has been an historical expert witness before Federal Court for claimants in numerous native title cases) argues, involves

418 Ibid, at 44 419 Case, op cit, at 18 420 Attwood (2003), op cit, at 13 - 14 421 Manne (2005), op cit, at 318 - 319 422 Reilly (2000), op cit, at 454 - 455 423 Gray, G. “History in the Courtroom: AQ Brief Consideration of Some Issues,” in Paul and Gray, op cit, at 34 424 Van Krieken (2006), op cit, at 585 425 Litchfield, op cit, at 15 426 Carter, op cit 427 Ibid 428 Stuckey, op cit, at 24 429 Rose in Paul and Gray, op cit, at 37 430 Hemming, in Paul and Gray, op cit, at 51

77 | P a g e analysing these historiographic issues amongst the competing interpretations of the evidence and presenting these to the Court.431

A similar remedy adopted elsewhere for settler history is the legal rule of contra proferentem, which involves interpretation of a contract against its author “in order to equalise the asymmetry between those who had the power to write ... and those who did not.”432 This includes in the Waitangi Tribunal in New Zealand, as well as in the interpretation of treaties by the Canadian Supreme Court and the US Supreme Court.433 Whilst strictly speaking this relates to the interpretation of treaties according to the indigenous language version of the treaty, it is a logical extension of the concept by reading the archive against the grain, and such an approach could be readily adopted in the interpretation of all historical documents where “settler history” is a risk.

7. Error The History Wars abound with examples of accusations of erroneous findings amongst participants’ work 434 A common theme is the accusation that participants have pre-concluded theses and leave out evidence that would contradict this,435 and allegations of “unsubstantiated guesswork.”436 In a judicial sense, similar allegations have been levelled at the HREOC report arising from the “National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families.”437

This potential for error has also extended to discussions regarding the expert witness in native title claims. A significant source of concern in this regard may arise given the suggestion that matters of history and anthropology are not in the same “factual league” as the harder sciences from which expert witnesses may be drawn. Accordingly, it has been suggested that there is no clear principle of the standard by which the acceptability of historical works is to be measured.438

431 Skyring in Choo and Hollbach (2003), op cit, at 71 - 72 432 Johnson, M. “Making History Public: Indigenous Claims to Settler States,” in Attwood, Chakrabarty and Lomnitz, op cit, at 109 433 Strelein, L. “The ‘Courts of the Conqueror’: the Judicial System and the Assertion of Indigenous Peoples’ Rights” [2000] AulndigLawRpr 22 http://www.austlii.edu.au/cqi-bin/viewdoc/au/iournals/AUIndiqLawRpr/2000/22.html (accessed 14 September 2017), referring to R v Marshall; Belgrave, op cit, at 235 434 Examples include Reynolds (1992), op cit, at 40; Broome, op cit, at 54; Connor, op cit, at 56; Dawson, op cit at 116 to 160 and 234; Broome, R. "The statistics of frontier conflict,” in Attwood and Foster, op cit, at 97; Day, D. Claiming a Continent - A New History of Australia, HarperCollins, Sydney, 2001, at 88; Ryan, L. “Who is the Fabricator,” in Manne (2003), op cit, at 237 and 251 -253; Reynolds, H. “Terra Nullius Reborn,” in Manne (2003), op cit, at 128; and Blainey, G. “Native fiction” (April 2003) 21(8) The New Criterion http://www.newcriterion.com/archive/21/apr03/blainev.htm (accessed on 23 January 2008) 435 Reynolds makes such allegations against Windschuttle in Reynolds in Manne (2003), op cit, at 114 - 115, 122 - 123 and 127, 134; So too does Moses in Moses in Manne (2003), op cit, at 363; Windschuttle makes similar accusations against Broome in Windschuttle, K. “The myths of frontier massacres in Australian history, Part II - The fabrication of the Aboriginal death toll” [November 2000] Quadrant http://svdnevline.com/Massacres%20Part%20Two.htm (accessed 23 January 2008); and against Reynolds in Windschuttle, K. “The myths of frontier massacres in Australian history, Part III - Massacre stories and the policy of separatism” [December 2000] Quadrant http://svdnevline.com/Massacres%20Part%20Three.htm (accessed 23 January 2008) 436 Windschuttle (November 2000), op cit; Windschuttle (2002), op cit, Chapter 10; Windschuttle, K. “Doctored evidence and invented incidents in Aboriginal historiography,” in Attwood and Foster, op cit, at 100; Evans “Plenty Shoot ’Em,” in Moses, A.D. (ed), Genocide and Settler Society, Berghahn Books, New York, 2004, at 167; Attwood, B. “Historiography on the Australian Frontier,” in Attwood and Foster, op cit, at 171 -174; Attwood, B. “Mabo, Australia and the end of history,” in Attwood (1996), op cit, at 106 437 See for example Brunton, R. “Genocide, the “Stolen Generations” and the “Unconceived Generations’”’ [May 1998] Quadrant 19 at 24 438 Dreyfus in McCalman and McGrath, op cit, at 72

78 | P a g e Crispin identifies a number of factors which may make expert witness immunity from error unattainable, including that everyone makes mistakes in “methodology, logic and competence,”439 and the validity of conclusions drawn ... will usually depend at least in part, upon ... the validity of propositions stated in relevant academic or professional literature.”440 Further, “subconsciously assumed intellectual constraints may exclude any consideration of relevant, perhaps decisive, issues.”441 Crispin attributes wide differences of opinion between experts at least partly to differences in personality and background.442

Amongst the participants in the History Wars and associated epistemological debates, there are a number of examples of accusations of error in the interpretation of the historical record in native title claims. Alleged errors include the mere mechanical and partial use of evidentiary material, combined with the methodological and historiographic issues relating to context and genre. An early example is the criticism by Reynolds of both Blackburn J in Milirrpum and Dawson J in Mabo, of misinterpreting the effect of one of the more significant Orders-in-Council, by placing too great a reliance on the opinion of a 19th century historian who "had no access to the archival material in Britain available to the modern scholar and therefore could only be guessing as to the intentions of the Colonial Office."443

However, Reynolds comes in for his own criticism in relation to submissions made on behalf of the claimants in Wik. The competing histories put before the High Court in that matter, and the High Court’s decision, is a useful example of how issues such as use of context on the one hand, and accusations of selective and partial use of evidentiary material on the other, may have influenced the findings of the Court. Indeed in Ward HC, Callinan J notes that in Wik:

Their Honours’ use of history, particularly dispatches from Earl Grey to the Governor of New South Wales has not escaped criticism by professional historians and other academics.444

In an article drawn from the claimant submissions in Wik, Reynolds and Dalziel use context as a basis for interpretation of historical documents and events, namely the upsurge of humanitarian sentiment in Britain (subsequent to the abolition of slavery),445 and attribute any lack of Colonial Office effective intervention upon the means available for policy implementation being “imperfectly suited to colonial conditions."446 In doing so they conclude that the history of the occupation and leasing of Crown lands and Colonial and State land laws evidences that Aboriginal People were not intended to be excluded from the areas of pastoral leases.447

However, Fulcher, who worked for the State of Queensland as an in-house historian in relation to the Wik case, suggests that the emphasis placed by Reynolds, and accepted by the Court, on colonial

439 Crispin, op cit, at 7 440 Ibid 441 Ibid, at 10 442 Ibid, at 11 443 Reynolds, H. “Native Title and Pastoral Leases,” in Stephenson and Ratnapala, op cit, at 127 444 [2002] HCA 28 at fn 816 445 Reynolds, H. and J. Dalziel, “Aborigines and Pastoral Leases - Imperial and Colonial Policy 1826 - 1855” 1996 19(2) UNSW Law Journal 3'\ 5 at 318 and 323 446 Ibid 447 Ibid, at 321

79 | P a g e administrators' concerns for the preservation of native title in pastoral leases constitutes a partial and selective use of the historical material.448 Examples of such allegations include:

• Omissions by Reynolds and Dalziel to reference comments by, and a dispatch from, Secretary of State for the Colonies Earl Grey, in which it is indicated Grey’s intention that in New Zealand all unoccupied lands vest in the Crown, from which Fulcher infers the application of these views by Grey to Australia.449 • Reynolds and Dalziel have edited a significant part of a notation made on legal advice to Grey, to exclude words which may indicate that the Colonial Office's intentions in relation to pastoral leases was to restrain the access of Aborigines and thereby legally exclude any suggestion of proprietary rights.450 • In relation to another of Grey's dispatches, Reynold’s and Dalziel place emphasis within a reference to indigenes' "former right to hunt" on the word "right,” thereby neglecting the importance of the word "former.”451 • A failure by Reynolds and Dalziel to explain, in relation to the contradictory intentions of the alleged Colonial officers and settlers regarding recognition of native title, why the Colonial Office officials did not prevail and impose recognition of native title in Australia, as they had done elsewhere in the new world.452

8. Subjectivity, advocacy, bias and politics A major point of contention in the History Wars is whether historical works can and should be value- free, to “show the past as it really was and to understand it on its own terms, and thus have independent historical truth.”453 In these controversies, the protagonists have frequently accused each other of not only lacking objectivity, but pursuing their work with political aims.454 Connor takes this debate directly to the feet of the Court, in arguing that the term "Terra nullius is ... part of a political movement which used history to change the present... An argument of modern land rights politics.”455 By taking this course, Connor argues "[t]he Mabo judges, just like Australian historians, picked and

448 Fulcher, J. “Sui Generis History? The Use of History in Wik” in Hiley, G. (ed), The Wik Case: Issues and Implications, Butterworths, Sydney, 1997 at 53- 54; Fulcher, J. “The W/'/c Judgment, Pastoral Leases and Colonial Office Policy and Intention in NSW in the 1840s” (1998) 4 Aust J Leg Hist 33 at 39 - 43; These comments, Fulcher argues, are supported by contemporaneous lectures by Permanent Under-Secretary of State, Herman Merivale - Fulcher, op cit, at 54 - 56 449 Ibid, at 53 450 Ibid, at 55 - 56 451 Ibid, at 34 and 52, Fulcher in Hiley, op cit, at 56 452 Fulcher, op cit, at 36 453 Attwood in Attwood (1996), op cit, at xvii and 141 fn 55 454 Blainey, G. Blainey - Eye on Australia. Speeches and Essays of Geoffrey Blainey, Schwartz and Wilkinson, Melbourne, 1991, at 49 and 125; Windschuttle, K. “Foreword,” in Dawson, op cit at vii and at ix, with particular reference to Reynolds (1996), op cit; Windschuttle (December 2000), op citi_Windschuttle (2002), op cit, at 5 - 7 and 400 - 404; Windschuttle, K. The Killing of History, Encounter Books, San Francisco, 1996, at xi; Manne “Introduction” in Manne (2003), op cit, at 7; Attwood (2005), op cit, at 62, 81 and 122; Manne (2005), op cit, at 310; Reynolds in Manne (2003), op cit, at 135; Ryan in Manne (2003), op cit, at 255; Attwood in Attwood and Foster, op cit, at 176 and 181; Attwood (2005), op cit, at 180; Attwood (2003), op cit, at xiv and 74; Rowley, op cit, at viii; Evans, R. Fighting Words - Writing about Race, University of Queensland Press, St Lucia, 1999, at 10 and 18; Reynolds (1999), op cit, at 4, 124 and 244; Reynolds(1995), op cit, at 1 and 198 - 200; Reynolds (1996), op cit, at 245; Bagshaw, G. “Anthropology and Objectivity in Native Title Proceedings” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 1; MacIntyre and Clark, op cit, at 218 455 Connor, op cit, at 9, 257 and 260

80 | P a g e chose definitions of terra nullius to construct their judgments."456 Writing after the Mabo judgment was delivered, Reynolds takes the contrary view, namely that “the Mabo decision ... is far more securely rooted in the Australian experience than many observers appreciate.”457

Similarly in relation to Wik, Selway has observed the tendency of commentators to allege that members of the Court may have been be swayed by “broad perspectives of justice and equity, and that their reliance upon the historical record was to support a conclusion arrived at by other means.”458 However, Shaw disputes the ability for any social science to be value-free and objective, particularly in relation to matters such as native title “where emotions run high, particularly among claimants who feel justified that their culture is under threat.”459

Trends in academic circles have also been said to pose potential influence over the objectivity and motivations of experts.460 Crispin describes this as having “sometimes led to extravagant and potentially misleading claims of accuracy based upon purely theoretical considerations,”461 and notes the potential for bias particularly “when considerations of loyalty intrude,”462 463because:

the opinions and perceptions may be influenced by those in the same professional group or with similar objectives. These may give rise to a prevailing paradigm ... a strong network of commitments which shape the practice of those who share it.462

This “groupthink” has potential for effect on the objectivity of a witness and the danger of attempts to prove facts accord with presuppositions.464 However, Russell argues there is also the potential for academic fashions based on “curiously misunderstood laws of objectivity” to denounce the use of interpretive methods within the discipline.465

Objectivity as an ideal for the Court’s findings of facts may also face challenges when relying on experts’ methodologies which explain through narratives and interpret according to inferences and context (which may in turn involve subjective assessments).466 There are also a number of real-world influences that complicate notions of objectivity in relation to expert opinions. These include institutional politics; ethics; competition; multiple techniques and methods; variable levels of relevance; public concerns perceptions; and levels of trust.467 There is also the contradicting standards between the different types of work carried out by experts. Anthropologists engaged to provide an opinion away from litigation but which is subsequently put to the Court as testimony,

456 Ibid, at 189 and 191, where Connor makes similar criticisms of Murphy J's judgments in Wacando v Commonwealth (1981) 148 CLR 1 and Coe v Commonwealth (1979) 24 ALR 118 at 137 457 Reynolds, H. “The Mabo Judgment in Light of Imperial Land Policy” (1993) 16(1) UNSW Law Journal 27 at 28 458 Selway, op cit, at 156 -157 459 Shaw (July 2001), op cit, at 2; Shaw, B. "Expert Witness or Advocate? The Principle of Ignorance in Expert Witnessing” (October 2001) 2(11) Land, Rights, Laws: Issues of Native Title at 5 460 Windschuttle (November 2000), op cit; Wooten in McCalman and McGrath, op cit, at 28 461 Crispin, op cit, at 9 462 Ibid, at 13 463 Crispin, K.J. “Humanities in the Courtroom,” in McCalman and McGrath, op cit, at 173 464 Ibid 465 Russell, P. 'Almost believing: the ethics of historical imagination' in MacIntyre, S (ed), The Historian’s Conscience - Australian historians on the ethics of history, Melbourne University Press, Carlton, 2004 at 108 466 Dreyfus in McCalman and McGrath, op cit, at 78 - 79 467 Edmond, G. "After Objectivity: Expert Evidence and Procedural Reform" [2003] SydLRev 8 at 9

81 [Page Edmond argues, may have to find ways to finesse their “duties between the partial performance permitted outside the Court and the purported duty of impartiality inside.”468

The adversarial nature of Court proceedings also has the potential to impact the impartiality of those giving evidence in them. Kirby J concedes “a variation from Platonic notions of perfect impartiality has to be tolerated in any system of adversarial or accusatorial justice.”469 Experts may be accused of bias on behalf of a particular client due to their experience and career history working with particular groups, political beliefs or simply by who is paying their fee, resulting in perceptions of “courtroom history” which selects data and theories which further the goals of the client,470 and the evolution of the expert witness into the “professional witness.”471 Palmer argues the nature of anthropology raises particular concerns around objectivity, as follows:

The very nature of anthropological inquiry demands that practitioners engage in social relationships which necessarily result in the development of human relationships. Non­ anthropologists understandably may conclude that this is likely to lead to a lack of objectivity.472

In this way, expert evidence prepared expressly for litigation has been given the term “junk science,” to emphasise its potential to be subject to the influences of advocacy and partisanship.473 As a consequence, Courts may find favour with historical accounts not prepared for the purpose of prosecuting a claim, seeing these as more objective474 (although as discussed above in relation to settler history, these may pose their own risks).

Issues of bias and agenda may also be alleged against claimants giving oral evidence, given they are seeking to benefit from the evidence they are the custodians of.475 This is discussed further in Chapter 5.

Notwithstanding the suggestion by some that the Court may be ill-equipped to diagnose bias in an expert witness,476 throughout the relevant literature there are various suggestions around how subjectivity and impartiality may be managed through the process. Evans recommends experts adopt “a detached mode of cognition, a faculty of self-criticism and an ability to understand another person’s point of view.”477 Shaw suggests that advocacy by experts can be safeguarded against through the application of reliable methodologies which are accepted in the relevant discipline.478

468 Edmond (2004), op cit, at 216 469 Kirby, M. "Expert Evidence: Causation, Proof and Presentation” International Institute of Forensic Studies Inaugural Conference, Prato, Italy, 3 July 2002, http://www.hcourt.qov.au/publications/speeches/former/speeches-bv-the-hon-michael- kirbv (accessed 14 September 2017) 470 Ray in McCalman and McGrath, op cit, at 110 471 Barker in Toussaint, op cit, at 159. See also Wooten in McCalman and McGrath, op cit, at 27 - 28; Green, N. “Three-legged Elephants: Native Title Histories,” in Toussaint, op cit, at 156; Gray in Paul and Gray, op cit, at 26; Crispin, in McCalman and McGrath, op cit, at 172 - 173; Glaskin in Bauman, op cit, 35 to 54 at 44 472 Palmer (2007), op cit, at 5; Palmer (2011), op cit, at 6 473 Burke (2011), op cit, at 249 474 Ray in McCalman and McGrath, op cit, at 105 475 McGrath in McCalman and McGrath, op cit, at 253 476 Sperling, H.D. "Expert Evidence: The Problem of Bias and Other Things” Supreme Court of New South Wales Annual Conference, Terrigal, 3-4 September 1999 at 2 477 Evans (2000), op cit, at 219 478 Shaw (October 2001), op cit, at 5, namely anthropological method (for instance, participant observation), oral history method (for instance recording narratives), legal method (syllogistic chain of reasoning with a hermeneutic emphasis), and historical method (accessing archives but also doing oral history).

82 | P a g e The Court may have regard to overriding duties in contracts of retainers, clearly defined instructions to constrain the potential for advocacy, transparent and fulsome record keeping, the inclusion and consideration of adverse evidence in reports (not left to arise only on cross-examination) and a willingness to make concession in the face of evidence or hypotheses to the contrary.479 In this way, Dr Beckett, the anthropological expert witness called by the claimants in the Mabo v State of Queensland480 trial of facts, is said to have reinforced his notional independence through his willingness to state views contrary to the plaintiffs’ case, making appropriate concessions during cross-examination, projecting circumspection about his interpretative claims, and a willingness to identify as speculation opinions offered on meagre data.481

9. Multiple filters The involvement of source material, interpreted and inferred from by experts, led as evidence and submissions as to appropriate inferences by lawyers, and the final ruling of valid inferences by judges means there are multiple filters applied in the Court’s inferential process. Each participant is differently influenced and have their own biases regarding historiographic debates and epistemological issues. Crispin describes this as the “three stages of refraction”:

the stage at which the scientist forms his or belief or conclusions, the stage at which the counsel presents and addresses the scientific evidence at trial and the stage at which the jurors form their conclusion. At each stage the human frailties of those concerned may lead to some measure of distortion482

This situation raises issues in relation to the point or points at which it is appropriate that inferences from the evidence be drawn. Connolly suggests that the general approach of the Court is not to permit expert witnesses to draw inferences to missing or complex facts, as that would be to usurp the proper role of the Court itself.483 This may be exacerbated in circumstances where the relevant discipline, such as the social sciences and the humanities, sees itself as essentially contested.484

However where inferences are required based on expertise that exceeds that of the Court, certain experts may be able to make such inferences for them.485 According to Connolly, Courts should rely on such inferences drawn by expert witnesses if these “could assist the court in the construction of an objective account of the facts in issue and if it does not unnecessarily intrude upon the court’s official inferential or narrative function.”486 This is in the circumstances noted by Wooten as follows:

Unspecialised judges are called on to decide extraordinarily complex issues about culture, cultural continuity and history of societies that are quite foreign to what their personal and

479 Chalk, A. “Anthropologists and Violins - A lawyer’s view of expert evidence in native title cases” Native Title Conference: Expert Evidence in Native Title Court Cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001 at 9 480 [1992] 1 Qd R 78 481 Burke (2011), op cit, at 81 - 82 482 Crispin, op cit, at 5; Crispin in McCalman and McGrath, op cit, at 167, 168 and 175-177 483 Connolly A. “Legal Facts and Humanist Stories: The Humanist as Expert Witness” in McCalman and McGrath, op cit, at 138 484 Van Krieken (2006), op cit, at 576 485 Ibid at 139 486 Ibid, at 139-140

83 | P a g e professional lives have prepared them to do... For the most part the lawyer advocates share their limitations.487

Various commentators remain critical of particular judges in native title determinations, who are willing to rely on their own perceived skills to interpret matters of social science and the humanities.488 Burke suggests “judges tend to feel no compunction in bypassing historians when they are interpreting historical documents.”489 Indeed, as noted by a former judge, one of the dangers of history in legal reasoning is the failure of the lawyer or Judge to properly understand the history (including its limitations).490

In relation to judges adjudicating what appropriately constituted specialised knowledge in the anthropological field, various authors have criticised the determination of Sackville J in Jango v Northern Territory491 (Jango), Burke states that in that case, the Court “blundered in to his conclusions with only a perfunctory acknowledgement of his own limitations in presenting an alternative view of anthropological opinion.”492 Similarly Glaskin notes that Sackville J:

made comments regarding how the anthropologists should have conducted their research, expressing the view that he was not at all sure why the anthropologists needed to ‘carry out such extensive interviews’, and suggesting that this might ‘duplicate’ the role of lawyers. This reflects a fundamental misunderstanding of anthropology.493

Carter is similarly critical of Lindgren J’s judgment in Harrington-Smith v State of Western Australia (No 7)494 (Wongatha No 7), which indicated a reluctance by the Court “to recognise historical interpretation as an opinion deriving from ‘specialised knowledge’, again reflecting an assumption that the court was equipped to undertake this sort of interpretation without assistance.”495

Criticisms have also been levelled at individual judges for their differing willingness to draw inferences from the oral evidence of claimants in support of native title’s ongoing existence, according to the wide scope given to them to determine sufficient evidence of past traditional laws and customs. Behrendt, Cunneen and Libesman suggest the various Yorta Yorta decisions “leave findings with respect to traditional laws and culture dependent on the individual judge’s capacity to listen to and appreciate the claimant’s evidence.”496

Curthoys, Genovese and Reilly state that Selway J in Gumana v Northern Territory of Australia497 (Gumana), Wilcox J in Bennell and Merkel J in Rubibi No 5 were all “prepared to draw positive inferences of continuity from the oral testimony of claimants, and from the fragments of the historical record which are consistent with the evocation of these practices,” but by contrast, Mansfield J in Risk

487 Wooten in McCalman and McGrath, op cit, at 33 - 34 488 Reilly (2006), op cit, at 27 489 Burke (2011), op cit, at 258 490 Selway, op cit, at 148 491 [2006] FCA318 492 Burke (2011), op cit, at 257 493 Glaskin in Bauman, op cit, at 47 494 [2003] FCA 893; (2003) FCR 424 495 Carter, op cit 496 Behrendt, Cunneen and Libesman, op cit, at 203 497 [2005] FCA 50

84 | P a g e made a negative determination “despite strong evidence of present-day observance of traditional laws and customs, and a correspondence of these laws and customs with the past.”498 In so doing, those authors argue, the individual judges “have revealed different attitudes and approaches to interpretation of past events, and the use of these events in establishing native title.”499 Similarly, Mansfield J’s judgment is cited as an example of the inherent discretion judges have in construing silences in the archive.500 501

Strelein is also critical of the judicial filter in native title determinations post Yorta Yorta HC, in that the views of the trial judge in that matter:

demonstrated the vagaries of an assessment based ... on a judge’s perception of the group ... Native title claimants must rely on the ability of a non-lndigenous judiciary to conceptualise the contemporary expressions of Indigenous identity, culture and law as consistent with the idea of a pre-sovereign normative system.™

The multiple stages of refraction also creates the need to consider the practice of judicial notice, whereby evidence may be considered as sufficiently within general knowledge making it capable of being drawn upon as within the common knowledge of the Court.502 As Kirby J has noted, “judges are not entirely hostage to the parties’ research.”503 Various authors have commented on the judicial notice taken of Reynolds’ approach to history in Mabo and in Wik.504 Van Krieken notes that:

Reynolds's historical arguments were assimilated into the fabric of the judgments without having to pass any of the hurdles concerning expert opinion. They were simply taken as given by the High Court Justices, subjected to no uncomfortable comparison with live testimony (which was in any case impossible).505

10. Unease amongst the adversarial system The appropriateness of an adversarial system in the evaluation of evidence from anthropologists, historians and indeed the oral evidence of native title claimants has been the subject of mixed reaction amongst commentators. For expert witnesses, this system has been said to diminish their ability to explain complex technical concepts, having been “thrown into a stressful climate of urgent preparation and adversarial expectation to produce clear-cut statements on the basis of which courts can make final findings of fact.”506

498 Curthoys, Genovese and Reilly, op cit, at 71 409 Ibid 500 Ibid, at 68 501 Strelein (2009a), op cit, at 80 502 Wooten in McCalman and McGrath, op cit, at 26 503 Kirby (2005), op cit, at 10 504 Manne in Manne (2003), op cit, at 3; MacIntyre and Clark, op cit, at 126; Hunter in Attwood (1996), op cit, at 12; Connor, op cit, at 218 and 220; Selway, op cit, at 151; Van Krieken (2006), op cit, at 582 - 583; Attwood (2009), op cit, at 297; Attwood (2004), op cit, at 16; Behrendt in Curthoys, Genovese and Reilly, op cit, at xii; Davison, G. “History on the Witness Stand: interrogating the past,” in McCalman and McGrath, op cit, at 58 - 59; Gara in Paul and Gray, op cit, at 69; Ritter (1999), op cit, at 4; McQueen, H. Suspect History - Manning Clark and the Future of Australia’s Past, Wakefield Press, Adelaide, 1997 at 202; Clendinnen, op cit, at 56; Partington, G. The Australian History of Henry Reynolds, Amec, Adelaide, 1994 at 1, 2 and 19; Reynolds (1999), op cit, at 202. 505 Van Krieken (2006), op cit, at 583 506 Wooten in McCalman and McGrath, op cit, at 33 - 34; Crispin in McCalman and McGrath, op cit, at 176

85 | P a g e The issues identified previously in this Chapter in relation to practitioners of the social sciences and humanities demanding reference to broader contexts and conceding the potential for multiple interpretations may also fall prey to greater legal challenge in the adversarial setting. Clement draws on her own experience giving evidence on behalf of the Crown in native title claims. She suggests that the inclusion of “philosophical arguments that are commonplace in the humanities” in expert witness reports may be vulnerable in the context of the “imbalance of power in the court,”507 particularly as the witness does not direct the lines of enquiry made on their evidence in the examination and cross examination processes.

More generally, alternatives may be found in more inquisitorial approaches, although these too have been said to have been not without their limitations.508 Case management approaches within the existing adversarial system, such as conference of experts, have been found to be “likely to lead to more nuanced, albeit more discursive conclusions.” 509 However, the adversarial system itself is not universally condemned as inept at dealing with the relevant issues and requisite outcomes.510 511As someone with experience as an expert witness (although not in a native title context), Evans for one did not share the concern that the Court was not a suitable forum for the resolution of historical and methodological dispute:

Even in the courtroom, we had as much time as we wished to discuss the issues we had raised in our reports. In the witness box, it was not difficult to insist, if an attempt was made by the cross-examiner to cut inconvenient testimony short, that one had sworn an oath to tell the whole truth as well as nothing but the truth, and the judge was invariably sympathetic to the argument, however lengthy the answers to which it led. There was no question of any moral judgment being demanded of the court. The issue centred on an empirical question.5''''

11. Conclusion to Chapter 4 This Chapter considered the challenges for the inference imperative in native title addressed through recent historiographic and epistemological debates which relate, directly or indirectly, to the proof of native title. It analysed the need, identified in the literature, for the Courts to apply inferential reasoning in light of the vagaries of archival material and expert evidence from the social sciences and humanities. Significantly, a number of contributors to the relevant literature make reference to specific native title cases. This is most extensive in relation to early, formative cases, but importantly also extends to more recent cases which allegedly involve disparate applications of the reasoning processes. Arising from this analysis, for the purposes of developing the Inference Guidelines and in answering Research Question 1 to the extent it relates to recent Australian historiographic and epistemological debates, it is clear that the inferential process should be applied:

507 Clement, C. “Historians and Native Title: A Personal Perspective” (December 2000) 91 Australian Historical Association Bulletin 86 at 86 - 88 508 Goodall finds favour with the informal and culturally appropriate approach of the Maralinga Royal Commission, but notes a lack of flexibility in the Royal Commission into Aboriginal Deaths in Custody - Goodall in Attwood and Arnold, op cit, at 108 509 Curthoys, Genovese and Reilly, op cit, at 105 -106 510 See for example, Osiel, op cit, at 42 511 Evans (Oct., 2002), op cit, at 340 -341

86 | P a g e • To archival evidence conscious of broader contextual matters that mitigate gaps in the record, including the relationship with the wider literature applicable locally and regionally, and the impacts of Government policies, frontier cultures and other external factors, as well as corroboration or contradiction by oral and other forms of evidence. • Having regad to the genre of the records put before the Courts, including the potential motivations, standpoint limitations and cuiltural and political perspectives of the recorder. • In relation to expert evidence, with a consciousness of the relative risks of interpretative indeterminacy, room for error, and potential inherent subjectivities of witnesses, and the potential for the adversarial process to truncate testimony. • In a manner that maintains awareness by judges of their own cultural and political subjectivities that may affect the inferences they may draw.

The extent to which the claims made in the literature and discussed in this Chapter are equally acknowledged by the Courts will be considered further in Chapters 7 and 8. The extent that there are gaps in the subject matter between these sources will provide a useful insight into whether the Courts already have a bright line test for inferential reasoning or taxonomy for dealing with historically- sourced evidence.

87 | P a g e Chapter 5 - Challenges for claimant oral evidence

Overview of Chapter 5 This Chapter analyses specific issues relevant to Aboriginal and Torres Strait Islander oral evidence. Its purpose is to identify issues which guide the reception of multiple narratives in the inferential reasoning aspects of native title determinations.

Part 1 considers the relevant sources of literature for this analysis. Part 2 assesses how the literature deals with difference of language and non-verbal communications. Cultural differences such as avoidance of eye contact, silence and unwillingness to answer questions and limits on rights or abilities to speak is the subject of Part 3. Other cultural issues regarding contrasting methods of exchanging information, and suggestibility, gratuitous concurrence and scaffolding are addressed in Parts 4 and 5 respectively.

Part 6 analyses the differing concepts of communicating time, direction and distance. Issues of speech and hearing impairment and the reliability of memory generally are the subject of Part 7.

Part 8 analyses the consequence of all of these matters and any attendant cultural bias, for the Court’s ability to draw inferences based on the demeanour of a witness. Finally, Part 9 applies the analysis of some historiographic issues the subject of Chapter 4 to the need for balance between archival and expert evidence on the one hand, and claimant oral evidence on the other.

1. Particular considerations for indigenous witnesses The legal requirements of proof for native title pose additional challenges for native title claimants, in that they must prove their pre-sovereignty foundations, without the benefit of a documentary archive. Their orally-based normative system is therefore their main source of evidence to support their claims.512 As Sutton argues, this requires a process of “cultural translation,”513 in which the Western Court, accustomed to documentary sources of proof, must accommodate traditional evidence within its jurisprudence.

In relation to inferences drawn from the oral evidence of Aboriginal people generally and native title claimants in particular, there are important considerations in the context of the Court arriving at its overall determination with regard to the evidence as a whole. It is also specifically relevant in relation to issues of credibility, which have their own place in the broader inferential reasoning processes. Whilst there is doubt generally about the merits of assessing credibility with reference to witness demeanour, frankness, equivocation or lack thereof and accuracy on crucial facts,514 there are various

512 Reilly and Genovese, op cit, at 37 513 Sutton, P. Native Title in Australia - an Ethnographic Perspective, Cambridge University Press, Cambridge 2003,at 54 514 Re, L. “Oral v Written Evidence: The Myth of the “Impressive Witness”” (December 1983) 57 The Australian Law Journal 679 at 681 and 689

88 | P a g e considerations which challenge the appropriateness of this further in relation to indigenous witnesses, whose appearance in Court “represents a significant culture clash with the result that native title claims often falter on issues of credibility.”515

These considerations are set out in a number of different forms of literature. Firstly, there is the general academic and other published works on the topic of cultural considerations for the assessment of indigenous witnesses.

Secondly, there are the works of government agencies and the commissions of inquiry which have included in their reports highlights of the cultural factors and challenges that must be had regard to in the judicial process. The Queensland Criminal Justice Commission’ 1996 report on Aboriginal Witnesses in Queensland’s Criminal Courts516 is a significant example of this. This report was prepared in accordance with the then Criminal Justice Commission’s statutory objective of promoting an effective, fair and accessible criminal justice system. It found that “Aboriginal people appearing in court as witnesses are often at a disadvantage relative to other witnesses,” and makes recommendations “aimed at ensuring that courts have the best possible evidence on which to base decisions and are able to interpret the evidence properly.”517

Thirdly, there are the “Bench Books” adopted in New South Wales,518 Queensland519 and Western Australia.520 The rationale for these Bench Books is captured in the forward to the New South Wales version, being that “legal systems throughout the world have come to recognise that both access to, and the delivery of, justice requires understanding of the sensitivity to the special requirements and disabilities of particular sections of the community.”521 Its purpose is to provide judicial officers with:

• Statistics and information about the different values, cultures, lifestyles, socioeconomic disadvantage and/or potential barriers in relation to full and equitable participation in court prceedings for ... different groups of people. • Guidance about how judicial officers might neeed to take account of this information in court - from the start to the conclusion of court proceedings. It provides guidance only and is not meant to be in any way prescriptive.522

The Queensland Bench Book notes the following as its rationale:

perceptions of inequality can be reduced to some extent by knowledge of what causes them. Again, this does not require a judge to apply a different law or legal standard according to a person’s race, gender, impairment, cultural or economic background or any other attributes. Nonetheless, the assessment of where the truth lies in a particular case can require some

515 Mykyta, S. “Losing Sight of the Big Picture: the Narrowing of Native Title in Australia,” (2005) 36(1) Ottawa Law Review 93 at 121 516 Criminal Justice Commission, op cit 517 Ibid, at i. Other examples referred to throughout the literature including the Royal Commission into Aboriginal Deaths in Custody. 518 Judicial Commission of New South Wales, op cit 519 Supreme Court of Queensland, op cit 520 Supreme Court of Western Australia, op cit 521 Judicial Commission of New South Wales, op cit, at iii 522 Ibid, at ix

89 | P a g e understanding of the habits, manners and customs of groups to which particular individuals involved in the case belong.523

The Bench Books are directed at guidance in relation to various groups of people, including chapters specifically devoted to ensuring judicial officers have due regard to the cultural and linguistic factors relevant to traditional owner testimony.

Issues commonly raised across all of the literature are discussed in Parts 2 to 7 of this Chapter.

2. Difference of language and non-verbal communication An indigenous witness can’t be assumed to be speaking Anglo-Australian English, as they may have traditional languages, pidgins or creoles as their first language or may speak another form of Aboriginal English where words may have different meanings, different tenses and construction of sentences may apply or sounds might be different. Misunderstandings may arise from a lack of awareness of the differences and wrongful reliance on apparent similarities.524 This was acknowledged by the Court in De Rose as follows:

all parties to a dispute and their witnesses [must] be given every reasonable opportunity to give their evidence in a manner that makes clear the information that the witness wishes to impart ...In those cases where there may be doubts about the ability of a witness to express himself or herself in the English language, it is better to err on the side of caution and to permit witnesses to give their evidence in their first language.525 Second language competency can also be diminished by the stressful environment of the Courtroom.526 Sign language and gestures are also important for communication in some indigenous societies, which may go unnoticed by persons who aren’t accustomed to such features of communications.527

3. Avoidance of eye contact, silences and limits on rights or abilities to speak In contrast to the Western tradition of assessing honesty and credibility with reference to the witness “looking the questioner in the eye,” direct eye contact may be considered rude and aggressive in Aboriginal society (particularly where that person is in authority) and is avoided to demonstrate politeness and respect.528 Accordingly, the New South Wales Bench Book notes:

523 Supreme Court of Queensland, op cit, at 2 524 Ibid, at 83 to 87 and 96; Judicial Commission of New South Wales, op cit, at 2303, Criminal Justice Commission, op cit, at 15-17; Flynn M. & Stanton S, “Trial by Ordeal: The Stolen Generation in Court” (April 2000) 25(2) Alternative Law Journal 75 http://www.austlii.edu.au/au/iournals/AltLawJI/2000/29.html (accessed 10 November 2017); Byrne, J. “Indigenous Witnesses and the Native Title Act 1993 (Cth)” (June 2003) 2 National Native Title Tribunal Occasional Papers Series at 4; Neate in Horrigan and Young, op cit, at 288; Mykyta, op cit, at 123 525 [2002] FCA 1342 at [252] 526 Supreme Court of Queensland, op cit, at 99 527 Ibid, at 89; Judicial Commission of New South Wales, op cit, at 2308; Neate in Horrigan and Young, op cit, at 292 - 294 528 Supreme Court of Queensland, op cit, at 88; Judicial Commission of New South Wales, op cit, at 2303 and 2307; Criminal Justice Commission, op cit, at 25; Flynn and Stanton, op cit

90 | P a g e it is vital that no-one in the court allows any culturally-determined assumptions about what they believe looks trustworthy and what does not to unfairly mislead or influence their assessment of the credibility or trustworthiness of an Aboriginal person.529

Again in contrast to Western preconceptions, which consider silence may indicate evasiveness, ignorance or guilt, silence may indicate an indigenous witness is thinking or adjusting to the situation. It may suggest the witness lacks authority to speak on the topic or in the presence of a particular person. It may also suggest that the witness does not support the proposition being put, considers the question has already been answered, or doesn’t understand the question and is too embarrassed to seek clarification.530 Similarly a response of “I don’t know” may actually suggest a lack of an appropriate means to provide the information rather than a lack of knowledge.531

An indigenous witness may also be prevented from speaking to or in the presence of some people in accordance with rules of behaviour based on gender or kinship.532 Certain knowledge may only be communicated by specific individuals as “[ajuthority is proportional to the ritual knowledge of an individual and the association between the individual and the sites of ritual significance contained within his or her country.”533 Neate describes this as an “information economy” in that “[ajccess to some forms of knowledge is gradually obtained and is jealously guarded ... Although gender, age and other specifications of knowledge are well attested, the question is not so much what a person knows but who is entitled to display or perform the knowledge.’’534

Other evidentiary concerns in relation to historical recall in Aboriginal societies and cultures include bans on calling of the names of dead people, cultural distinctions regarding the appropriateness of matters for discussion in mixed company, and proscription of the telling of stories about persons one has not seen and come to know.535 Other forms of knowledge may only be spoken of on country. These complexities may lead to inappropriate interpretations of reluctance to answer questions.536 The Criminal Justice Commission summarised these issues as follows:

Some information is not freely available to everyone, as only certain people have rights to particular knowledge. Aboriginal people tend to judge the appropriateness of questioning according to how, where, when, by whom, to whom, and for what purpose the questions are being asked. A person’s standing in society and his or her authority to speak are much more important than whether the person was present at a particular incident.537

529 Judicial Commission of New South Wales, op cit, at 2306 530 Supreme Court of Queensland, op cit, at 88; Judicial Commission of New South Wales, op cit, at 2303 and 2307; Eades, op cit; Criminal Justice Commission, op cit, at 23 to 24; Flynn and Stanton, op cit 531 Supreme Court of Queensland, op cit, at 93; Judicial Commission of New South Wales, op cit, at 2312. For an example see Jango v Northern Territory [2006] FCA 318 at [294] 532 Supreme Court of Queensland, op cit, at 90; Criminal Justice Commission, op cit, at 27; Flynn and Stanton, op cit; Neate in Horrigan and Young, op cit, at 286 - 288 533 Cane, op cit, at 129 534 Neate in Horrigan and Young, op cit, at 283. Again, for an example see Jango t/ Northern Territory [2006] FCA 318 at [294] 535 Sansom, B. “The Brief Reach of History and the Limitations of Recall in Traditional Aboriginal Societies and Cultures” (2006) 76 Oceania 150 at 155 - 156; Criminal Justice Commission, op cit, at 27 536 Byrne, op cit, at 2 and 6 537 Criminal Justice Commission, op cit, at 19 and 24

91 | P a g e Such challenges may be overcome by the giving of group evidence, the benefits of which Sutton describes as follows:

It has to do with Aboriginal customary law in relation to truth and proof. It is not a trivial matter; it is not just that people feel emotionally comfortable to have their family with them and supporting them, though that’s true too. It’s a matter of how the word is formed in Aboriginal culture ... it’s a matter of having the proper witnesses to be there so you don’t get out of line, you don’t go over the mark and so on. These are collectively held laws and facts about things; these are not private matters.538

Similarly, there may be restrictions on the sharing of relevant information altogether. As the former Chief Justice of the Federal Court put it:

within the Australian legal system the rights and interests arising from [native title claimants’] traditional laws and customs will only be protected if sufficient information can be revealed about them. However, those same laws and customs are part of a knowledge system in which information and knowledge is restricted and decentralised for the protection and preservation of those same laws and customs.539

The difficulty this raises is that the concept of “‘secret’ carries a sinister connotation in Western culture” which can result in suspicion that what is being revealed is recent invention.540 Rose has describes as a “fundamental disjunction” the distinction “between the Australian legal system which requires an open and impartial inquiry and an Aboriginal system of law which is embedded in a culture in which knowledge is organised as intellectual property and is not freely available to all.”541 This then creates an issue for applicants to determine whether their application could succeed without disclosing the information, which is a balancing act between the benefit of achieving recognition of native title with the requirement to observe traditional restrictions on disclosure.542 Such issues are exacerbated in the context of overlapping claims, where the disclosure of information exposes it to risks of both challenge and appropriation by competing groups.543

Such issues were recognised by Barker J in Banjima People v State of Western Australia (No 2)544 (Banjima), where His Honour noted a need to have regard to the whole of the evidence in context, “as well as the general status and level of appreciation, and sources of knowledge and perspectives, of witnesses,” including “what is said [and] what is not said.”545 However, Jagot J’s judgment in Wyman on behalf of the Bidjara People v State of Queensland (No 2j546 (Wyman) also provides an example of where the Court was not prepared to infer, on the balance of the evidence, that a lack of

538 Sutton, P. “The relative strengths of oral and written evidence,” Finlayson, J.D. and J.S. Fingleton (eds), Proof and Management of Native Title, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1994 at 22 to 23 539 Black, op cit, at 24 540 Mykyta, op cit, at 124 541 Rose, D.B. quoted in Neate in Horrigan and Young, op cit, at 295 542 Neate in Horrigan and Young, op cit, at 297 543 Ibid, at 298 544 [2013] FCA 868 545 Ibid, at [267] 546 [2013] FCA 1229. Upheld on appeal in Wyman on behalf of the Bidjara People v State of Queensland [20'\ 5] FCAFC 108

92 | P a g e detail could “be inferred to be the result of cultural sensitivity. The inference which must be drawn is that the detail is simply not known.”547

4. Contrasting information exchange methods The question and answer approach to the exchange of information in the Courtroom is foreign to the approach of indigenous people who generally approach such a process through use of indirect and narrative methods and in ways that avoid open disagreement or criticism,548 or pursue information by “gradually getting to a subject by building an overall picture first, [whereby] personal questions are only asked when some understanding has been established.”549 Such an approach has been suggested as having the potential to be socially distressing for indigenous witnesses,550 as singling out an Aboriginal person for interrogation in front of an audience can cause shame.551 Negative and “either-or” questioning can be particularly confusing and the answers therefore unreliable.552 Eades describes the inconsistency between methods as being “the fundamental contradictions between everyday storytelling and retelling on the one hand, and the expectations and interpretations of storytelling and retelling in court on the other.”553

Repeated questioning, or as Eades describes it, “the interview,” “is not a speech event found in traditional Aboriginal societies, and nor is it typical in non-traditional 21st century Aboriginal societies.”554 As a consequence, Aboriginal people have not been socialised in the same way as non- Aboriginal Australians to deal with handling a repeated questioning technique.555 The preclusion of evidence by an uninterrupted narrative by the examination and cross-examination processes, and a divergence of language, complicates the process and can result in disjointed snippets of information.556 As Zariski argues:

the process of gaining knowledge across cultures must incorporate less questioning and more ‘telling’ by the other. Rather than risk the distortion of or worse, failure, of the exchange of meaning and insight which may accompany interrogation as a tool of Western rational inquiry, we ought to consider letting others speak more for themselves. In principle we must be prepared to listen more and ask less.557

547 Ibid, at [654] 548 Supreme Court of Queensland, op cit, at 90; Criminal Justice Commission, op cit, at 19 and 20; Neate in Horrigan and Young, op cit at 291 549 Judicial Commission of New South Wales, op cit, at 2312; According to Palmer, this type of approach is consistent with the methodology adopted by anthropologists, who “seek to obtain data through indirect ways, by listening over a long period of time and by gaining the confidence and trust of those with whom they work.” Palmer (2007), op cit, at 5 550 Australian Law Reform Commission, Uniform Evidence Law (ALRC Report 102), 8 February 2006 https://www.alrc.qov.au/publications/5.%20Examination%20and%20Cross-Examination%20of%20Witnesses%20/examination- witnesses (accessed 10 November 2017) 551 Byrne, op cit, at 4 to 5 552 Supreme Court of Queensland, op cit, at 104; Judicial Commission of New South Wales, op cit, at 2312; Criminal Justice Commission, op cit, at 23 553 Eades, op cit 554 Ibid 555 Ibid 556 McGrath in McCalman and McGrath, op cit, at 253 557 Zariski, A. "The truth in judging: testimony (Fifty bare-arsed Highlanders)" (February 1996) 21(1) A/ternaf/Ve Law Journal ai 27 at 27

93 | P a g e A rigid approach to cross-examination, which restricts responses to yes or no answers and limits the witnesses’ ability to seek clarification of the question, is culturally and practically problematic for indigenous witnesses. Cross-examination in particular has the effect of “decontextualizing” a witnesses’ story, as “parts of the story are often excerpted and questioned in isolation from the rest of the previous telling.”558 In addition, questioning of volunteered information can be intensely embarrassing for Aboriginal people.559 Such difficulties with the adversarial system (and limited English language abilities) were acknowledged by Lee J in Ward, where His Honour identified that “restricting oral evidence to responses to questions put by counsel left part of the story untold,” and that the full import of unstated or latent assumptions in questions from counsel “was not understood by some witnesses and the responses were not directed to issues raised indirectly.”560

A nuance to the adversarial system in relation to claimant oral evidence can be seen in the processes of the Waitangi Tribunal in New Zealand and the reconstituted Indian Specific Claims Commission in Canada. In those forums, the cross-examination of indigenous elders has been suspended on the basis that the authority of the witnesses is already recognised through their designation from their communities.561

5. Suggestibility, gratuitous concurrence and scaffolding Indigenous witnesses may be prone to agreeing with propositions put to them, irrespective of their true agreement or understanding of the proposition. This may be a means of conveying cooperation, avoiding conflict, signifying the futility of the interrogation process, avoiding admitting a lack of understanding of the question, just wanting to get things over and done with, or geared towards establishing or maintaining a relationship which is central to the exchange of information in Aboriginal culture.562 Particular vigilance for these matters is called for when a witness is subjected to leading questions in cross-examination.563

Another, similar risk is that of “scaffolding,” which involves the adoption of the wording and grammatical structure of the questioner, in circumstances where the witness does not have the language skills to frame a different reply, and which therefore may detract from the reliability of the response.564

These complexities were identified by Blackburn J in Milirrpum, as follows:

/ have learned from other experience in this Court not to place too much reliance on cross examination of aboriginal witnesses in which the questions are expressed in terms of anything

558 Eades, op cit 559 Criminal Justice Commission, op cit, at 20 560 [1998] FCA 1478, at 43 561 Johnson in Attwood, Chakrabarty and Lomnitz, op cit, at 113 562 Supreme Court of Queensland, op cit, at 90 to 92; Judicial Commission of New South Wales, op cit, at 2312; Eades, op cit; Criminal Justice Commission, op cit, at 21 to 22 and 27; Flynn and Stanton, op cit; Kerr, S. “Gratuitous Justice; a Review of the Queensland Criminal Justice Commission’s Report into Aboriginal Witnesses in Criminal Courts” (Sept 1996) 3(84) Aboriginal Law Bulletin 12 http://www.austlii.edu.au/cqi-bin/viewdoc/au/iournals/AboriqinalLawB/1996/62.html (accessed 10 November 2017); Mykyta, op cit, at 123 563 Supreme Court of Queensland, op cit, at 94; Criminal Justice Commission, op cit, at 51 564 Supreme Court of Queensland, op cit, at 92; Judicial Commission of New South Wales, op cit, at 2312; Criminal Justice Commission, op cit, at 18

94 | P a g e less than the most extreme precision. The natural courtesy and simplicity of the aboriginal people tends to make them somewhat easily “led” by a leading question, if by any possibility the terms of the question are such as to permit agreement with the answer suggested. ...I could not always attribute to the answers to [the Solicitor General’s] cross examination the weight which I might have done to the same answers out of the mouths of white men.565

However, Sackville J’s judgment in Jango provides an example of circumstances in which the Court is not willing to accept a situation of gratuitous concurrence. His Honour distinguished between acknowledgment of the “need to take account of barriers to communication in assessing evidence” from a disregarding of “the evidence of indigenous witnesses unfavourable to the applicants’ case because of what is said to be the phenomenon of ‘gratuitous concurrence’.”566

6. Different conceptions of time and place Aboriginal culture differs from Western approaches to knowledge in that it encompasses different conceptions of time (being timeless and cyclical/a continuum, rather than linear), place orientation, spatial arrangements and directions. Indigenous witnesses may prefer to specify details as lists or descriptions of geographical, climatic or social matters, rather than specifically quantifying matters. Approaches to numbers, dates and times and distances may therefore seem vague, inaccurate or inconsistent to someone from a different background.567

Gara notes that Aboriginal histories reflect different perspectives of history, time and causation.568 That author quotes Attwood, who argued that Aboriginal oral history “assumes a conjunction between present and past, that the past is something which is fluid and shifting and so amenable to intervention, and has an inevitable subjectivity as people seek to establish meaning for the past in the context of the present.”569 In such histories, time has less relevance and place is the real focus, “as patterns of behavior and particular events are described in a continuum in relationship to land sites.”570 It is this timelessness that distinguishes Aboriginal history from the linear Western paradigms of history, as “according to the principles of reincarnation, with animals, people, spirits constantly resurfacing on the land. Aborigines postulate that tradition is constant. ... this stance is ... both a legal code and historiology.”571

The Courts have also noted such concerns. This includes the judgment of Mortimer J in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2)572 (Dempsey), who stated in relation to spatial arrangements it was inappropriate to expect “connection to be expressed by reference to boundaries corresponding to lines in maps,” and that:

565 (1971) 17 flr 141 at 179 566 [2006] FCA 318 at [298] 567 Supreme Court of Queensland, op cit, at 93; Judicial Commission of New South Wales, op cit, at 2312; Criminal Justice Commission, op cit, at 25 to 26; See also Choo in Toussaint, op cit, at 198 568 Gara in Paul and Gray, op cit, at 79 569 Attwood, B. quoted in ibid 570 McGrath in McCalman and McGrath, op cit, at 255 571 Ibid, at 246 572 [2014] FCA 528

95 | P a g e Indigenous claimants may describe their country by reference to geographical and topographical features, to seasonal changes in the land or to shared boundaries with other groups spread across a swathe of land which cannot be identified in the way non-indigenous people might identify a fence line.573

7. Speech, hearing and memory impairment Indigenous populations are frequently more affected by symptoms of hearing loss and speech impediments, which have obvious implications for an affected witness in being able to effectively and efficiently participate in the Court process.574 As in any methodology involving capacities of human memory, reliability issues may arise, as recollections may be shallow, exaggerated, distorted, based on misunderstandings or re-interpreted in accordance with changed understanding.575This may be exacerbated given the room for distortion increases with distance from an event,576 and where the knowledge may have been gained by reference to the historical record itself through the involvement of claim group members in the preparation of the claim.577 Evidence may also be affected by conventions of revision of history by elders acting as keepers of the culture to erase “irregularities in consequential matters such as succession to land or the take-over of the country of one group by another;” and that the “recounted past must be a reminiscence that positively affirms the realities of the present.”578 Such evidence may therefore be vulnerable to challenge, as being “notoriously malleable and so unreliable.”579 For such reasons, Clendinnen sounds a cautionary note:

My own sense is that the possible social and political consequences of elevating any bundle of memories to unchallengeable sacred status are simply too momentous and too unpredictable to allow that kind of restraint-from-criticism ordinance 580

There are various examples of such concerns being noted by the Courts. Merkel J in Commonwealth v Yarmirr58'1 (Yarmirr FC) noted that the “spoken word is understood as being susceptible to modification over time as it is retold from one person to another.”582 Callinan J in the Yorta Yorta HC noted similarly that the spoken word passed down from forebears:

573 Ibid, at [131] 574 Supreme Court of Queensland, op cit, at 94; Judicial Commission of New South Wales, op cit, at 2303; Criminal Justice Commission, op cit, at 28 575 Gara, in Paul and Gray, op cit, at 79 576 McGrath in McCalman and McGrath, op cit, at 259 577 Petersen, N. “Organising the anthropological research for a native title claim,” in Burke, P. (ed), The Skills of Native Title Practice - Proceedings of a Workshop, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1995, at 14-15; Palmer (2011), op cit, at 5 578 Sansom, op cit, at 155 - 156, with reference to Morphy, H. “Myth, totemism and the creation of clans,” Oceania, 60, 312 - 28 579 Attwood, B. quoted in Kennedy, R. “Stolen Generations testimony: trauma, historiography, and the question of truth” (2001) 25 Aboriginal History 116 at 119; Johnson, M. "Honest acts and dangerous supplements: Indigenous oral history and historical practice in settler societies” (2005) 8(3) Postcolonial Studies 261 at 270; Attwood, B. “The Stolen Generations and genocide: Robert Manne’s In denial: the Stolen Generations and the Right” (2001) 25 Aboriginal History 153 at 168 580 Clendinnen, op cit, at 44 581 [1999] FCA 1668 582 Ibid, at [348]

96 | P a g e is at risk of being influenced and distorted in transmission through the generations, by, for example, fragility of recollection, intentional and unintentional exaggeration, embellishment, wishful thinking, justifiable sense of grievance, embroidery and self-interest.583

Similar issues arise in relation to the extent to which memory of such matters is as a result of their maintenance as traditional laws and customs, or whether such matters have merely been learned about by other means. In Bennell, Wilcox J identified a “resurgence of interest in Western Australian Aboriginal history and tradition” as posing a particular need to treat with caution the contemporary claimant oral evidence regarding group identity.584 Similarly Jagot J in Wyman inferred that the normative society “effectively ceased to exist until attempts were made to revive it from 2006 onwards as part of the native title claim,”585 and that the transmission of language amongst witnesses from a competing claim group could not be inferred to be by traditional means, but rather by access to a book published on the subject.586

8. Consequences of and means to accommodate cultural factors Where these factors are not given sufficient account in the trial process, the New South Wales Bench Book notes that Aboriginal people may feel uncomfortable, resentful, fearful, overwhelmed or offended; not be adequately understood or able to convey their point of view and/or understand what is happening; feel the subject of injustice; and may be treated unfairly or unjustly.587 In this sense, O’Loughlin J identified in De Rose that unclear or confusing evidence may have been a result of the “apparent discomfort of witnesses in the context of formal court proceedings.”588

A key to ensuring these factors are adequately accommodated is through judicial care not to let stereotyped views about Aboriginal people unfairly influence judges’ assessments and the assessments of others in the Court process.589ln this regard, the Criminal Justice Commission quotes former Victorian Supreme Court Judge, the Honourable Richard McGarvie, as follows;

/ consider that Australian judges do their difficult and responsible work very well. It is undeniable though that they are better equipped to do it when dealing with persons so similar that they can fairly infer how it feels to be that person. But what does a white judge know how it feels to be an Aborigine?590

Other means of accommodating these factors is to consider the legal norms, being the rules of evidence and procedure that regulate testimony and evidence tendered to a judge during a hearing.591 As Connolly argues, “the epistemic conditions which obtain at a legal hearing (including the legal norms regulating those conditions) [may]... be entirely non-conducive to the judicial acquisition of any

583 [2002] HCA 58 at [143] 584 [2006] FCA 1243 at [449] 585 [2013] FCA 1229 at [621] 586 Ibid, at [664] 587 Judicial Commission of New South Wales, op cit, at 2206 588 [2002] FCA 1342 at [249], [428] and [804] 589 Judicial Commission of New South Wales, op cit, at 2314 590 McGarvie, R. quoted in Criminal Justice Commission, op cit, at 31 591 Connolly, op cit, at 193

97 | P a g e or all culturally different concepts or entirely conducive to such acquisition, or merely to some degree conducive or non-conducive to such acquisitions.”592 That author rejects the suggestion that the possession or acquisition of a culturally different concept is theoretically impossible (the “radical cultural incommensurability thesis”),593 but notes that limits of judicial concept acquisition may occur by virtue of regulation by legal norms.594

Connolly recommends culturally specific judicial education and selection factors as a means to enhance the epistemic conditions needed for adequate conceptual acquisition.595 He also highlights the need for interpreters who also perform “a more general explanatory role as mediators and facilitators of communication between culturally different witnesses and the judge and other agents involved in the hearing.”596 This is also a role which may be played by anthropologists, as identified by Sackville J in Jango. In that case, His Honour noted the difficulties claimant witnesses confronted in providing full and coherent testimony, not due to a lack of knowledge or understanding but rather their not being accustomed to expression suited to a courtroom and difficulties of translation from the Western Desert dialects.597

Connolly also argues for the uptake of the various alternative evidentiary and procedural measures available to the Court, as outlined in Part 4 of Chapter 1, including:

• “Cooperative legal mechanisms” which establish a “context within the hearing process which mitigates the extent of any breach of secrecy posed by the giving of sensitive information by imposing strict limits upon the extent of the actual and potential dominant societal (or minority) audience from such information."598 • On-country hearings, which “may improve a judge’s sensory and cognitive access to relevant real evidence of culturally different concepts - geographical locations, natural objects, performance of culturally different actions,” as well as providing a more relaxed and informative forum and avoiding challenges such as the need to have reference to “maps which may have no meaning to the claimants and which cannot begin to reflect their relationship to country.”599 • Alleviating the effects of or potential for aggressive cross-examination, such as the giving of evidence in groups, and the adoption of a more inquisitorial mode so as to “render the judicial interpretive and epistemic role more effective.”600

592 Ibid, at 194 593 Ibid, at 165 594 Ibid, at 197 595 Ibid, at 199-201 596 Ibid, at 205. See also Neate in Horrigan and Young, op cit, at 288 - 290; Supreme Court of Queensland, op cit, at 98 - 101; and Judicial Commission of New South Wales, op cit, at 2309 597 [2006] FCA 318 at [292]; See also Jagot J’s judgment in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [474] 598 Connolly, op cit, at 206 599 Ibid, at 208 - 209. Sackville J in Jango v Northern Territory noted examples whereby the “contrast between the demeanour of witnesses when testifying in the courtroom and when giving evidence more informally on-country was sometimes striking” - [2006] FCA 318 at [296] 600 Ibid, at 203 and 2011. See also Neate in Horrigan and Young, op cit, at 285 - 286

98 | P a g e 9. Balancing the archive and experts with oral evidence The extent to which oral or documentary evidence should be afforded greater weight is the subject of significant debate throughout the History Wars and associated literature. Edmond argues there is a “legal colonisation of anthropology ... evidenced most graphically in the way anthropologists, and other expert witnesses, enable Aboriginal voices to be ‘silenced’ and marginalized” and as a consequence “[mjost of the leading native title and heritage protection judgments devote considerably more space to the evidence of anthropologists, historians and archaeologists than the evidence of Aborigines” whose evidence they have “genuine difficulty comprehending and incorporating.”601

At one end of the scale in this debate is Windschuttle, who is critical of “Aboriginal oral history, when uncorroborated by original documents” posing the potential for “legends, myths and prejudices of any culture [to] become legitimate.”602 Alternatively, Litchfield argues that “’judicial authority’ would be better grounded if it was thought of as defaulting neither solely to the written nor the spoken word, but the outcome of conversation that draws on both documents and oral histories.”603 Such an approach creates a role for archival evidence and expert witnesses to either corroborate and augment (for example, by providing evidence of genealogies that are beyond recall by memory) or contradict the oral histories of claimants.604 At the same time, there may be a role for oral testimony in supplementing and correcting the written record, to preserve the opportunity for the Court to have regard to multiple perspectives of the past.605

Ritter describes the corroborative opportunities available to the Court when considering the evidence as a whole, whereby anthropologists can infer an identifiable native title group, whilst historical and oral evidence can take such matters further to infer the causes of actual events such as preservation of territory, resources and culture, to evidence continuity of connection.606 There are also suggestions corroborative approaches to claimant testimony and archaeological inferences and reconstructions can assist the Court in the proof of native title, particularly where unbiased historical evidence is often lacking, such as for areas of occupation including fringe camps, station camps and mission sites.607

Strelein argues that by giving weight to claimant oral evidence, the Courts are in the position to reconsider the objectivity of the archive and accommodate alternative worldviews which acknowledge and address cultural bias across competing modes of evidence.608 Other writers have suggested claimant evidence gives Courts the opportunity to assess the whole of the evidence through a “bicultural history,”609 rather than through the “anti-intercultural bias in the legal doctrine.”610

601 Edmond (2004), op cit, at 220 602 Windschuttle in Attwood and Foster, op cit, at 106 and 107 603 Litchfield, op cit, at 15 604 Gray in Paul and Gray, op cit, at 32; Curthoys and Genovese in McCalman and McGrath, op cit, at 86; Barker in Toussaint, op cit, at 162 and 175 605 Attwood, B. “In the Age of Testimony: The Stolen Generations Narrative, “Distance” and Public History,” in Attwood, Chakrabarty and Lomnitz, op cit, at 79 - 80 606 Ritter, D. “Whither the Historians? The Case for Historians in the Native Title Process” 1999 4(17) Indigenous Law Bulletin 4 at 5 607 Roberts, A. “Using Archaeology as evidence” (February 2001) 26(1) Alternative Law Journal 41 at 41 608 Strelein (2000), op cit 609 Williams, op cit at 236 610 Burke (2011), op cit, at 269

99 | P a g e However, the prevalence of respondent reliance on documentary evidence may be exacerbated because claimants do not ordinarily permit the respondents in native title claims to undertake pre-trial oral history research in their communities. In these circumstances, the Crown and other respondents have little choice other than to rely on the archive and the pre-claim era ethnographic record.611

The relevant literature pays particular attention to the differing approaches taken by the Courts to the weight afforded oral evidence vis-a-vis other modes of evidence, particularly across the varying approaches taken in Yorta Yorta, Yorta Yorta FC, Yorta Yorta HC, and Ward. According to Ritter, the differences in approach reflect “different historiographical traditions.”612

Various authors are critical of Olney J’s preference for the archive over oral evidence, and His Honour’s approach of assessing the original character of traditional laws and customs as at sovereignty and henceforth having to be maintained. Hausler argues that Olney J’s willingness to infer truth from the written archival material was one of the best cases for demonstrating how a Court may err in its judgment by not giving equal weight to claimant oral evidence and written evidence.613 Olney J’s approach also influenced his findings in relation to whether a practice is representative of invented rights and interests or continuity through evolved rights and interests.614 In so doing, Broome argues “Olney’s reliance on the writing of white settlers of the nineteenth century, led him to adopt a static view of culture.”615

The approaches of Black CJ in the minority in Yorta Yorta FC and Lee J in Ward differ widely from that of Olney J in Yorta Yorta. Black CJ’s starting point is the traditional laws and customs currently observed which define the community living under them, form the basis of native title rights and interests where that community can identifiably trace its existence back in time.616 As a consequence "records of the past (whether textual or orally transmitted), will not be regarded as foundational for native title.”617 According to Carter, Black CJ’s approach to dealing first with the evidence of living witnesses about the continuance of traditional practices opened the way for the Court to take a broader approach and consider “evidence from, an extensive period of time, reasoning that a discrete historical inquiry makes it impossible to determine whether a change is simply an evolution or adaptation, or represents a complete interruption.”618 This approach thereby created “a broader base for drawing inferences of continuity.”619

Mykyta is critical of Yorta Yorta HC in that, notwithstanding an acknowledgment that written evidence is not “inherently better or more reliable than oral testimony on the same subject,”620 Their Honours’ suggestion that Olney J did not proceed from this impermissible premise is contrary to the exact words of Olney J’s judgment.621 That author therefore calls this out as an inherent prejudice in

611 Ray in McCalman and McGrath, op cit, at 102 -103 612 Ritter in Paul and Gray, op cit, at 88 613 Hausler, op cit, at 62; See also Ketley and Ozich, in Choo and Hollbach, op cit, at 88; and Hemming in Paul and Gray, op cit, at 54 614 Ray in McCalman and McGrath, op cit, at 106 615 Broome, op cit, at 263 616 Litchfield, op cit, at 17 617 Ibid, at 18 618 Carter, op cit 619 Ibid 620 (2002) 214 CLR 422 at [63] 621 Mykyta, op cit, at 122

100 | P a g e Western legal systems, and calls for the High Court to “set guidelines for lower courts as to how they should approach oral history evidence and the challenges peculiar to Indigenous witnesses in a non-lndigenous legal system.”622

Reilly and Genovese are critical of the majority in Yorta Yorta FC, Branson and Katz JJ, who were prepared to leave standing an approach to assessing the historical evidence that was theoretically flawed, and similarly of the leading judgment of Gleeson CJ, Gummow and Hayne JJ in Yorta Yorta HC which failed to address the questions of historical theory central to Black CJ’s reasons for allowing the appeal.623 In contrast, those authors praise the approach for proof of native title taken by Gaudron and Kirby JJ in Yorta Yorta HC, who held that how traditional laws and customs were observed was irrelevant once claimants establish a connection to the land, thereby de-emphasising the need for the courts to make an assessment of conditions in the past.624

In contrast to Olney J and the various majority judgments in Yorta Yorta FC, Lee J in Ward gave primacy to the oral history evidence of the claimants, and used documentary historical evidence only “to provide context in which to understand and evaluate” the oral evidence.625 Lee J also adopted a similar approach for assessing the traditional nature of law and custom, with regard to whether or not current laws and customs were “rooted in the past” rather than whether past laws and customs continued to exist.626 Reilly says that Lee J’s attribution of prominence to oral tradition over the written record enabled the Court to dismiss historical accounts of dispossession (and thus lack of continuity).627 As well as diminishing the emphasis on historical enquiry in native title claims, Ketley and Ozich argue this approach is both less ethnocentric and better allows for change in laws and customs since sovereignty provided the general nature of the connection remains.628

Various authors suggest that the approaches of Black CJ in the Yorta Yorta FC and Lee J in Ward now have or will ultimately be accepted to have pre-eminence in native title jurisprudence.629

10. Conclusion to Chapter 5 This Chapter analysed specific issues relevant to the oral evidence of Aboriginal and Torres Strait Islanders, with a view to identifying key issues relevant to the reception of multiple narratives in the inferential reasoning process in native title trials.

622 Ibid, at 120 and 122 623 Reilly and Genovese, op cit, at 28 and 29 624 Ibid, at 30 and 31 625 Ketley and Ozich in Choo and Hollbach, op cit, at 90; Curthoys and Genovese, op cit, at 89; Reilly (2000), op cit, at 460 and 469 626 Ketley and Ozich in Choo and Hollbach (2003), op cit, at 93 627 Reilly (2000), op cit, at 459 628 Ketley and Ozich in Choo and Hollbach (2003), op cit, at 90 - 93; Reilly, op cit, at 460 620 Litchfield comments that the approach advocated by Black CJ may retain some authority, as “there was nothing in Chief Justice Black’s methodological prescriptions that were disagreed with by majority” - Litchfield, op cit, at 16. The relevant comment from Branson and Katz JJ was limited to the observation that the claimants’ submission that whether a law or custom is traditional is a subjective test "would, it seems to us, leave considerable scope for the rewriting, perhaps unintentionally, of history."[2001] FCA 45 at [126]. See also Keon-Cohen and Seidel in Bauman and Click, op cit, at 249; and Ketley and Ozich in Choo and Hollbach (2003), op cit, at 93, with reference to Commonwealth v Yarmirr[200'\] HCA 56 at [69]

101 I P a g e Its finding, for the purposes of the content of the Inference Guidelines and the answer to Research Question 1 to the extent it relates to special considerations regarding oral evidence of Aboriginal and Torres Strait Islander peoples, is that:

• The reliability of such evidence should be considered biculturally, cognisant of the linguistic and cultural factors that impact on claimant oral evidence.

• In particular, the Court should ensure potential cultural biases do not colour inferences that may be drawn from the demeanour of an indigenous witness, including inferences of credibility or otherwise, having regard to differences in language and non-verbal communication; lack of eye contact and prolonged silences; limits on rights and abilities to speak amongst individuals; suggestibility, gratuitous concurrence and scaffolding; different conceptions of distance, direction and time; speech and hearing impairments; and potential weaknesses relating to memory (including the potential for distortion over time and confirmation bias).

• In addition, the weight of oral evidence of claimants should not be subjugated to that of other forms of evidence based on any epistemic preferences of the Courts, and should be afforded the level of importance discussed in Chapter 1, having regard to the overall evidentiary landscape as discussed in Chapter 8.

• With reference to all of the above, Courts should consider if alternative evidentiary and procedural approaches might alleviate the disadvantages that may otherwise be suffered by indigenous witnesses by way of inferences drawn from demeanour, credibility and inconsistencies in testimony.

In relation to Research Question 2, regarding the extent to which the Courts have already developed informal guidelines for inferential reasoning, it will be seen in subsequent Chapters that the Courts have a reasonable level of consciousness that Aboriginal and Torres Strait Islander people generally are subject to disadvantages in the adversarial system. However, it is also apparent that there are only isolated instances of familiarity with the specific aspects of the matters analysed in this Chapter across the native title jurisprudence. This analysis therefore also forms an important input to the findings on that research question, as well as the relevant considerations for inclusion in the Inference Guidelines.

102 | P a g e Chapter 6 - Theories of inference in the judicial context

Overview of Chapter 6 The purpose of this Chapter is to provide an analysis of general evidentiary theories, to draw out aspects of these that directly relate to inferential reasoning of the Courts. This involves a review of the limited literature that addresses how inferences are or may be appropriately drawn in the adjudication process.

Part 1 of this Chapter involves a consideration of why inferential reasoning is necessary in the judicial process. Part 2 provides an assessment of various principles of logic - deduction, induction and abduction - and how these are relevant to Court processes. Part 3 outlines techniques proposed to add rigour and confidence to the inferential process identified in seminal texts, with particular reference to the work of John Henry Wigmore and other authors who have built on Wigmore’s approach.

This is followed in Part 4 with an analysis of specific theoretical issues such as the role for generalisations, “common sense” and background knowledge in inference drawing. Part 5 analyses an approach to inference which is specifically cross-cultural. Part 6 sets out an overview of perceived deficiencies in mathematical approaches to probability in the Courtroom setting. Alternative “explanatory” approaches to selecting “best” inferences, and other contemporary theoretical approaches are then the subject of Parts 8 and 9 respectively.

1. The need for inference Similar to the social sciences and the humanities, the role and process of inference has been recognised and discussed in various legal commentaries (although perhaps, not to the same extent). The key driver is a symptom of the standards of proof applied by the Courts - in both criminal and civil proceedings the Courts are not, and of their nature never can be, restricted to findings of absolute truths and facts. By virtue of the Court (whether judge or jury) having to determine matters without either the benefit or the requirement for certainty, facts will be found proven based on probability considerations alone, and inferences may be drawn from such proven facts again on the basis of assessments of what is more probable. “Probability” is explained by James as being:

not an actual state. Nothing really is probable. It is true or false. Probability is a matter of appearance. Apparent probability is always relative to the data available at the time judgment is exercised. If all possible data were available we should be dealing not with probability in an ordinary sense but with the approximation of certainty.630

630 James, op cit, at 698 fn 20

103 | P a g e Issues of probability arise “because courts have limited materials on the basis of which to decide what happened,” the result of which is that the Courts must determine both the probabilities based on the limited material available to it, as well as “whether that limited material is sufficient to base a reasonable decision.”631

Inferences are made necessary by the same issues raised in Chapter 4 - the evidentiary record may not be set out in its totality and in perfect detail, and matters which satisfy elements necessary to prove or respond to a matter may fall within the gaps of such a record. As Anderson, Schum and Twining argue (in a statement apt to respond to many of the assertions raised in the History Wars discussed in Chapter 4), “[t]he skepticism of the disappointed perfectionist has little value in a system that is explicitly based upon standards that require only less than perfect proof.”632 Similarly Ligertwood and Edmond acknowledge, a “definitive correspondence between knowledge and the physical world is an impossible ideal,” and accordingly, Courts “can only strive for that knowledge in a rational and orderly way.”633 Inference is central to this process, to determine material facts to “varying degrees of likelihood or probability.”634

The use of inference raises the need to distinguish between direct and circumstantial evidence. Twining draws on the works of Jeremy Bentham, to make and signify this distinction, as follows:

The main significance of the distinction relates to the nature of the logical processes involved: Where all the evidence is direct ‘the case is such as affords not room for any special inference: for any other inference than that general one ... with direct evidence the form of inference is: ‘From W’s statement “Y exists” we infer that Y exists’. ... With circumstantial evidence there is at least one additional step: ‘From Ws statement ‘‘X exists, ” we infer that X exists; from the proposition ‘X exists” we infer that Y exists’... There is a ‘chain of facts’, with at least two inferences involved.635

In this respect, Heydon argues “[n]o useful purpose is served by comparing the merits of direct and circumstantial evidence.”636 He also argues:

If the only classes of evidence that could be given of facts in issue were testimony, admissible hearsay, documents and things, many claims would fail from want of adequate proof. ...At some stage resort almost always has to be had to ‘‘circumstantial evidence, ” which may be defined as any fact (sometimes called an “evidentiary fact;” “factum probans” or “fact relevant to the issues”) from the existence of which the judge or jury may infer the existence of a fact in issue (sometimes called a “principal fact” or “factum probandum”).637

631 Hodgson, D.H. “The Scales of Justice: Probability and Proof in Legal Fact-Finding,” (1995) 69 Australian Law Journal 731 at 733 to 734 632 Anderson, Schum and Twining, op cit, at 103 633 Ligertwood and Edmond, op cit, at 7 634 Ibid, at 8 635 Twining, W. Theories of Evidence: Bentham and Wigmore, Stanford University Press, Stanford, 1985, at 33, with reference to Mill, J.S. (ed), Rationale of Judicial Evidence, 1827 636 Heydon, op cit, at 16 637 Ibid, at 15

104 | P a g e Taking these points further, in what Pardo claims is “orthodoxy in evidence scholarship,” that author has identified the following factors that drive the need for inferential reasoning by Courts:

• Epistemological factors - so as “to regulate the evidentiary inputs and reasoning processes at trial in ways that lead to more reliable, better justified, and ultimately more accurate decisions.” • Economic factors - “because of limited time and resources, the economic costs of any procedure must be considered, and compared with, any epistemological benefits the procedure may bring.” • Moral factors - in that “certain parties will suffer the consequences of factual errors and the legitimacy of the state’s authority is bound up with how the law allocates the risks of these errors.”638

Stein makes a similar assessment, arguing that setting probability thresholds is a matter of allocating risks of error, which is done in civil trials with regard to considerations of cost efficiency and equality of apportionment (for example, by ensuring admissibility of evidence only if it “unfolds itself to individualized scrutiny and the consequent adverse utilization,” and by only excluding evidence where the risk to one party of doing so is matched by the risk to the other that it may distort the truth639), and which is a “distinctively moral choice.”640 He makes this argument as “trials cannot derive from judicial forecasting of the success or failure of the ongoing scientific evolution or revolution.”641 Accordingly, “[ijnferences more compatible with equality in risk-allocation should trump any competing inference.”642 This allocation of risk approach fills the gap given probabilistic judgments do not constitute justified true beliefs, in the epistemic sense.643 It is also a criteria that makes the legal context unique and distinct from other disciplines that aspire to the discovery of the truth.644

Anderson, Schum and Twining provide two further useful preliminary points on inferential reasoning in the legal process. Firstly, they distinguish between inference and proof, in that inference is the process, by virtue that it “represents an argument or a claim that there is a logical relationship between two propositions, that one proposition supports the other,” whilst proof (or lack thereof) “is the result - the conclusion to be reached after the inferences have been evaluated.”645 Secondly, those authors argue that law only differs from other disciplines, which all have largely shared problems of evidence and inference, to the extent that “substantive law defines the hypotheses to be tested, the propositions to be proved, and formal rules regulate the manner in which cases are prepared and the admissibility of use of evidence.”646

638 Pardo, op cit, at 4 639 Stein, op cit, at 105 and 131 640 Ibid, at 121 and 197 641 Ibid, at 197 642 Ibid, at 238 643 Pardo, op cit, at 4 644 Pundik, A. “Epistemology & The Law of Evidence: Four Doubts about Alex Stein’s Foundations of Evidence Law,” The Foundations of Evidence Law conference, Hebrew University of Jerusalem, 6 November 2006 645 Anderson, Schum and Twining, op cit, at 94 646 Ibid, at 46-47

105 | P a g e 2. Deduction, induction and abduction A useful starting point in considering theories relevant to inferential reasoning is to distinguish between the relevant principles of logic that may be drawn upon in a fact-finding process, namely deduction, induction and abduction. These are the principles called upon to rationally justify decisions regarding disputed questions of fact.647

Deductive argument is the “form of argument in which a major premise is applied to a minor premise to establish that a conclusion is valid. In evidential reasoning, the major premise may be a proposition of law or, more often, a generalization.”648 This form of argument would very rarely give rise to material inferences from uncontested premises.649 Deduction is generally not the subject of judicial approaches to inference because it is reliant on the truth of all premises for the conclusion reached to be true - it is not directed at accommodating margins of doubt or probability.

Alternatively, inductive argument is:

an argument that one proposition (taken as established), a factum probans, makes another proposition in the case, a factum probandum, more or less probable than it otherwise would be. The argument is frequently by analogy and almost always rests upon an assumed generalization upon whose acceptance the strength of the argument depends.650

Inductive inferences take a number of forms, with abduction the most prevalent in the trial process.651 Abductive reasoning, also known as “inference to the best explanation,” is “a creative process of using known data to generate hypotheses to be tested by further investigation.”652 Abduction is an exercise of common sense logic, which is “ubiquitous at or near the surface of typical arguments offered in judicial and scientific contexts and in ordinary life.”653 The abduction questions for the lawyer is “[wjhat hypothesis might account for these data that would be consistent with a result that would advance (or protect) the client’s interests?” and “[c]an the data be marshalled to provide compelling support for the inferred propositions necessary to the client’s success in the case at hand?”654 Anderson, Schum and Twining argue the role of the lawyer in using abductive reasoning is to construct hypotheses to satisfactorily account for the available data and to discover sources of additional evidence to test these, as well as identify the bases upon which an opponent may seek to explain away assertions based on their own evidential data.655 Those authors distinguish between the role of abduction and induction in the inferential process during a trial, in that:

Abduction is critical in the early stages, when there remains time for investigating the possibilities before committing to a specific theory on which the case will be tried. Induction

647 Ibid, op cit, at 98 648 Ibid, at 381 649 Pardo and Allen, op cit, at 227 650 Anderson, Schum and Twining, op cit, at 383 651 Pardo and Allen, op cit ,at 228 652 Anderson, Schum and Twining, op cit, at 379 653 Josephson, J.R. “On the Proof Dynamics of Inference to the Best Explanation” (2001) 22 Cardozo L Rev. 1621 at 1621 and 1641 654 Anderson, Schum and Twining, op cit, at 98 and 99 655 Ibid, at 98 and 99

106 | P a g e becomes central when the possibilities have been identified and explored and the data are as complete as is feasible.656

3. Wigmore's narrative and chart methods A number of contemporary authors have made reference to the works of John Henry Wigmore as the starting points for their analysis. Twining suggests that Wigmore believed that the appropriate approach to inferences in judicial proof should be based on “the principles of sound reasoning and practical decision-making in everyday life” which involves “a fairly straight-forward application of simple principles of induction.”657 That author summarises Wigmore’s approach to analysing evidence and making detailed inferences as involving two methods, the narrative method and the chart method. In relation to the former, this “rearranges all the evidential data under some scheme of logical sequence, narrating at each point the related evidential facts, and at each fact noting the subordinate evidence on which it depends; concluding with a narrative summary.”658

The latter results in a diagrammatic presentation of the relations between all relevant evidence and ultimate probanda. Common to both is a logical scheme that studies relations between propositions to be proved (factum probandum) and the supporting proposition (factum probans)659 These often involve a series or chain of inferences, or inferences upon inferences, because the same propositions can be both factum probans and a factum probandum (a situation that Twining states is very common in judicial trials).660 661There is room for doubt at each stage of this reasoning, resolved with reference to “common sense” to identify the vulnerable aspects, through a test of:

Does the evidentiary fact point to the desired conclusion (not as the only rational inference but) as the inference (or explanation) most plausible or most natural out of the various ones that are conceivable? Or ... is the desired conclusion (not the most natural, but) a natural or plausible one among the various conceivable ones? After all the other evidential facts have been introduced and considered, the net conclusion can be attempted.66''

Ligertwood and Edmond draw on Wigmore’s chart method to set out the following steps that may be carried out by judges in a trial process where inferential reasoning is to be applied:

(a) Assumption - the starting point is to assume there is a logical relationship between evidence and conclusions of fact. (b) Isolation of information experienced and facts to be established - factual conclusions to be inferred are those alleged material facts (contended by a party as a factual hypothesis) which would justify a certain determination by the Court. Precision is required as to which of

656 Ibid, op cit, at 99 657 Twining (1985), op cit, at 121 658 Ibid, at 125, with reference to Wigmore, J.H. Principles of Judicial Proof, as given by logic, psychology and general experience (1st ed), Boston,1913 659 Twining (1985), op cit, at 126 660 Ibid, at 127 661 Ibid, at 127 and 128

107 | P a g e such facts (including series or compounds of facts) require ultimate discovery. Which material facts will be in issue will depend on what line is taken by the respondent or defendant parties. (c) Articulating logical steps to be taken if facts follow from evidence - this step is a process of inferring intermediary facts, from which further inferences are drawn until the ultimate facts can be regarded as discovered through a series of inferences. Such steps involve the following two kinds of inferences: • chains of inferences (or catenate inferences); and • inference of one fact from a number of other separate facts (or converging or corroborative inferences). (d) Consider individual chains - each individual chain of inference should be considered to determine support for a factual conclusion or a rival factual conclusion. (e) Consider convergence of separate explanatory chains - individual chains should be considered together to assess the relationship between the evidence and the inferred conclusion. Alternative explanations can be assessed by contrasting these against each other. (f) Probability - the combination of inferences is then assessed having regards to concepts of probability.662

Elements ofWigmorean approaches are applied by Anderson, Schum and Twining, to identify the following five concepts which they argue are central to using inference in reaching an ultimate probandum:

• Conjunction - to succeed at trial, one party may have to establish each of several facts in issue, and the other party may only need to establish one alternative to a fact in issue. They argue “the ultimate probandum may include alternative conditions, disjunctive penultimate probanda, such that the proponent need only establish one of the alternatives” in order to succeed.663

• Compound (or complex) propositions - “an intermediate probandum may also contain a number of elements, each of which is supported by separate evidence,” in which circumstances logic “specifies necessary, but rarely sufficient, conditions that must be satisfied.”664

• Convergence - where two items of circumstantial evidence independently support the probability of the same conclusion, and therefore converge to strengthen the inference. In such circumstances, the inference is only as strong as “its constituent parts and must, in some sense, be weaker where the evidence leaves ground for doubt about each of the parts.”665

662 Ligertwood and Edmond, op cit, at 8 - 13, with reference to Wigmore, J.H. The Science of Judicial Proof (3rd edition), Little Brown and Co, Boston, 1937 663 Anderson, Schum and Twining, op cit, at 103 and 104 664 Ibid, at 104 665 Ibid, at 106 to 107

108 | P a g e • Corroboration - similar to convergence but focused on credibility in circumstances where two witnesses independently testify to the proof of a proposition.666

• Catenate inferences - chains of inferences, “when there is more than one step in the reasoning necessary to show the relationship by which a probans supports a probandum." To achieve this “the lawyer should seek to identify every condition that may give reason for doubt about the claim that probans A supports probandum B. Each ground that raises a plausible basis for doubt indicates that there is a necessary step in the inferential chain that should be examined.”667

Those authors describe the basic inferential characteristics or credentials of evidence as relevance, credibility and probative force.668 They argue as follows:

Any item of directly relevant evidence must be linked to a penultimate probandum by a chain of inferences. This chain can contain several links. The first link in the chain is always the credibility link. The remaining links are those necessary to demonstrate the relevance of the item to a penultimate probandum. The probative force of an item depends upon the strength of each link in the chain.

Where the probative force of a mass of evidence needs to be assessed, the probative force of every chain must be assessed. These individual assessments are then “combined to determine the net probative value of the mass with respect to the ultimate probandum."669

4. Generalisation, background knowledge and '"common sense" Various authors have proceeded further upon the suggestion by Wigmore that inferential reasoning is grounded in “common sense,” by combining this concept with that of the reasoner’s background knowledge and experience and his or her own readiness to accept generalisations, either from “the general experience of the court or upon expert testimony,”670 as the prism through which to view accepted factum probans and arrive at factum probandum.

Twining argues that inferences may be “justified by reference to a background generalization drawn from ‘general experience,’” which absent empirical research, involves falling back on “one’s own stock of knowledge.”671 He elaborates on the role of general experience in the inferential process, arguing that “we have to appeal to our own personal or vicarious experience, often referred to as ‘common sense’, ‘general knowledge’ or ‘experience of the common course of events’.”672

Again referencing Bentham and Wigmore, Twining suggests that “all knowledge is derived from human experience, which provides the ultimate test for the correctness or otherwise of all beliefs about matters of fact.” On this basis, generalisations, rather than authentication based on scientific

666 Ibid, at 107 667 Ibid, at 107 to 108 668 Ibid, at xviii 669 Ibid, op cit, at 71 670 James, op cit, at 704 671 Twining, W. Rethinking Evidence - Exploratory Essays, Northwestern University Press, Evanston, 1994 at 292 672 Twining (1985), op cit, at 143

109 | P a g e laws, often form the basis of many judgments.673 Twining closes out this discussion with two observations in relation to the judicial process. Firstly, he argues (in a manner that may cut across the utility of Wigmore’s work for the judicial process) that the “practical exigencies of litigation in the adversary system obviously leaves relatively little scope for “regular articulation of generalisations and the construction of charts.”674 Secondly:

In order to make decisions we are forced to rely on general experience with all its imperfections. Unlike the historian and the scientist, the adjudicator has a duty to decide; all that one can hope for is that such decisions will be based on the best available grounds for making judgments of fact.675

Similarly, Anderson, Schum and Twining make the point that "every inference is dependent upon a generalization.”676 Those authors argue that generalisations are rarely universally true propositions, but rather matters subject to “fuzzy quantifiers” (such as something usually occurs when another thing happens).677 Whilst generalisations may operate intuitively rather than consciously in the minds of the reasoner in a non-legal context, in legal proceedings a generalisation relied on to draw inferences must be identified and have its strength or plausibility tested. This can be achieved by analysis having regard to

• a “generality axis,” on which generalisations range from the most abstract form to those specific to the precise case or context; • a “source axis,” on which generalisations range from the synthetic or intuitive with no identifiable source to those based on repeated personal experience and acquired knowledge; and • a “reliability axis,” on which generalisations range from those based on strongly held biases or prejudices held irrespective of available data, through those based on commonly held but unproven beliefs, to those based on scientific laws, well-founded scientific opinions and widely shared conclusions from common experience.678

Stein acknowledges the role of these matters in the progression of inferential reasoning, in that conclusions from evidence rely upon the existence of generalisations.679 But he argues connecting generalisations to individual cases is possible “only when there is a real fit between the fact pattern of the generalization and the case at hand.”680 In this regard, Stein comments specifically on the role of missing evidence in the inferential process, with reference to what he calls an “information-stabilizing assumption”:

any identifiable fit between an individual case and an applicable generalization is conditional on the assumption that the missing evidence could not undo it. ... The validity of... such

673 Ibid, at 145 674 Ibid, at 148 675 Ibid, at 149 676 Anderson, Schum and Twining, op cit, at 100 677 Ibid, at 101 678 Ibid, at 101 -102 679 Stein, op cit, at 117 680 Ibid

110 | P a g e assumptions depends on the unrealized potential of the missing evidence to produce a different factual conclusion. ... This factor determines the argument’s resiliency, that is, the extent to which the argument is evidenced and, more crucially, the extent to which it can withstand changes in its underlying evidence base.681

Pardo similarly notes the crucial need to have regard to the potential for missing evidence when relying on generalisations, and calls for the reasoner to rely on “their individual or collective background knowledge, if roughly accurate, about the significance of this additional gap” between the evidence and the event, through which it is more “likely to lead to more accurate decisions than simply assuming the gap in the information does not exist.”682 Ligertwood and Edmond argue similarly, in that where “a case comprises proof of a number of independent events then the evidential support for the case as a whole is equivalent to the support for that event with the lowest inductive probability.”683 Thus “that evidence which appears to be unavailable also needs to be factored into any decision."684

Mack, however, sounds caution in relation to assumptions that judicial inference involves mere common sense and natural reasoning, and calls for self-analysis by the inference drawer in considering what culturally-specific knowledge they will draw upon.685 She argues:

this process is not “natural” at all, as it often depends on personal and cultural assumptions and beliefs which are not the same for everyone - what is a natural inference for you may not be so natural for me.686

Further, “common sense” does not acknowledge specificities such as individual beliefs, values, standards, cultural perspectives and an absence of a stock of shared experiences, which run contrary to the generalisations that are said to underpin inferential conclusions of fact.687 Thus, inferences are measured against personal perspectives, which has the potential to “substitute the knowledge, experience and perspective of the group which has dominated legal and public life, that is, older, white, educated, heterosexual mates.”688 Ligertwood and Edmond identify the remedy for this problem being through the legal system “accepting that reality is undoubtedly influenced and constructed through psychological, social and political influences and processes ...[and so it’s task] is to peel back or accommodate these influences in an effort to base its decisions on what really happens in the world out there.”689

681 Ibid, at 118 682 Pardo, op cit, at 22 683 Ligertwood and Edmond, op cit, at 36 684 Ibid, at 39 685 Mack, K. “Teaching Evidence: Inference, Proof and Diversity,” (2000) 11 Legal Educ Rev 57 at 64 686 Ibid, at 59 687 Ibid, at 60 - 63 688 Ibid, at 62 and 63 689 Ligertwood and Edmond, op cit, at 41

111 (Page 5. Cross-cultural interpretive ethos Connolly has suggested an approach to judicial inferential reasoning that draws on the background knowledge of judges and applies it in a cross cultural setting, and in so doing has called for Courts to adopt a “cross cultural interpretive ethos.”690 Judges are members of an “interpretive or conceptual community,” informed in their beliefs by “other authoritative agents, including other judges.”691 To take “epistemic advantage” of evidence and submissions put to the Court, the judge must “interpret or otherwise cognitively appropriate those sources of information,”692 subject to the legal norms regulating the reception of evidence.693 Where this involves evidence of concepts which are culturally different to the background of the judge, it calls for a “process of enculturation,”694 which requires the judge to have the capacity and motivation to bring relevant evidence within his or her sensory range and engage in the kind of reasoning to cognitively appropriate the concepts involved.695

Connolly argues that the judicial interpretation of testimony involves a multi-stage process which, relevantly, includes

a process of inference from what is believed or assumed by the judge to be the case about the present behavioural outputs, environmental inputs and behaviorally relevant background intentional states and governing intentional regularities or rationality class of the testimonial agent ...to what is not yet the subject of belief by her - the identity of the behaviourally explanatory intentional complex involved in the testimonial action in question.696

The process of inference takes place within the theoretical parameters of two theories, namely:

(a) The theory of the testimonial agent, which comprises a set of beliefs held by the judge “about the present behavioural outputs, environmental inputs and behaviourally relevant background intentional states and governing rationality of the testimonial agent.”697

(b) The judge’s theory of mind, which is a “set of beliefs maintained by the judge about the causal regularities which typically obtain between the environmental inputs, behavioural outputs, and intentional states of some set of human agents,”698 including propositions that are thought to apply “for all normal agents,”699 drawn from “both her own cognitive development in the face of her individual experience of the interaction of agents with the world and that of the community of interpretive agents into which she is born and subsequently socialized”700 (the judge’s “community’s folk theory of mind”701).

From the application of these two theories, the judge seeks to infer the best conclusion regarding causation between environmental and intentional events, with other intentional events, and between

690 Connolly, op cit, at 213 691 Ibid, at 63 692 Ibid, at 74 693 Ibid, at 76 694 Ibid, at 102 695 Ibid, at 99 696 Ibid, at 121 -122 697 Ibid, at 134 698 Ibid, at 122 and 134-135 699 Ibid, at 137 700 Ibid, at 139 701 Ibid, at 140

112 | P a g e intentional events and other intentional or behavioural events, from the observed and believed behavioural output of the testimonial agent. This is then subject to testing and revision (confirmation or disconfirmation) of the various propositions involved “in the face of any further justified beliefs about the testimonial agent the judge might acquire” through further evidence or reasoning.702

Connolly identifies the following risks inherent in this process:

it does not follow ... that a judge is assured ... of possessing an interpretatively adequate theory of mind for a given testimonial agent. Some set of the theory of mind propositions she relies upon in interpreting the testimonial agent may be false or may be not applicable to (may not be true of) the testimonial agent in question. Alternatively her theory of mind may not be comprehensive enough - it may not include propositions which describe the regularities which actually govern the testimonial action under interpretation.703

The judge must therefore be prepared to maintain, fine tune or abandon assumptions and beliefs in accordance with subsequently justified beliefs about the testimonial agent, to maintain logical consistency.704 Where this involves cultural difference between the judge and the testimonial agent, such that “testimonial evidence offered to her... is relevantly informed by concepts she does not possess, she must interpret and cognitively engage with other evidence about those concepts until she reaches some level or vector of the sub-conceptual content ... that she does possess.”705 Consequently:

the more the judge justifiably believes about the past, present and future environmental inputs, behavioural outputs and intentional states of the testimonial agent either directly or via inference within a theoretical framework, the better placed she is to justifiably eliminate implausible ascriptions of intentional states to the agent and hone in on the most plausible ones.706

This requires the judge to develop an “interpretively adequate theory of the testimonial agent” to reach a justified conclusion, through (where necessary having regard to the judge’s pre-existing epistemic situation), the acquisition of more interpretively relevant beliefs about the testimonial agent over the course of the hearing.707 Accordingly, “[i]n the indigenous land title context, it will be an interpretive environment which facilitates the capacity of the judge to go on from that interpretation to understand and legally recognize the indigenous actions those testimonial actions are about.”708

6. Concerns with mathematical approaches Whether mathematical approaches to probability can play a useful role in the inferential process is a matter of debate.709 Hamer argues in favour of a role for mathematics in the processes, with a

702 Ibid, at 122 - 123, 135 and 145-146 703 Ibid, at 141 704 Ibid, at 157 705 Ibid, at 160 706 Ibid, at 162 707 Ibid 708 Ibid 709 Ligertwood and Edmond, op cit, at 15

113 | P a g e probability threshold of 50 percent (or “more probable than not”) said to have a “solid basis in policy. A standard of 50 per cent can be expected to maximise the number of correct decisions. It also recognises the equality of the parties before the law.”710 He acknowledges though that “humans prefer to make probability assessments through story construction. They therefore display a bias in favour of colourful detailed evidence and against dry mathematical proof.”711 Hamer distinguishes these two forms of judgment, as frequency-based judgments (based on statistical data) and scenario-based judgments (based on stories which draw on detail to be credible and persuasive).712 The latter lends itself to inferences which result in an ’’actual belief, amounting to reasonable satisfaction, about the fact in question,”713 rather than mere numerical probability.

As Ligertwood and Edmond identify, there are various limitations on mathematical approaches to probability, particularly the use of “Bayes Theorem” which is directed at considering the extent to which the consideration of further evidence increases the probability of a hypothesis.714 Courts generally do not have the luxury of revisiting decisions to update them as new evidence comes to light. In many cases such mathematical approaches may lead to results which are contrary to human intuitions,715 and rely on a hypothesis being compared with all other possible explanatory hypothesis, such that unless “all alternative hypotheses are taken into account, [the factual determination process] is biased in favour of those explanations put forward by the parties in a case.”716

These approaches are also concerned with the nature of classes of events, rather than determining unique events, which is the role of the Court.717 The use of mathematical probabilities for and against a hypothesis also raises the question “[c]an a Court ever be satisfied that a particular hypothesis did occur when confronted with the express probability that it did not?”718 Where there are multiple independent elements relevant to proof in an action, perverse outcomes may also be arrived at where the probability of individual elements each exceeds 50%, but when multiplied by each other to arrive at an overall probability the result may fall far short of 50%.719

Hodgson summarises why mathematical approaches are generally not favourable in the Courts’ inferential processes, in that:

decision-making generally involves a global assessment of a whole complex array of matters which cannot be given individual numerical expression. Such a decision depends very much more on commonsense, experience of the world, and beliefs as to how people generally behave (folk psychology), than on mathematical computations; and concentration on mathematical probabilities could prejudice this commonsense process.720

710 Hamer, D. “The Civil Standard of Proof Uncertainty: Probability, Belief and Justice" (1994) 16 Sydney Law Review 506 at 509 and 535 711 Ibid, at 507 712 Ibid, at 525 713 Hodgson, op cit, at 731 714 Ligertwood and Edmond, op cit, at 24 715 Ibid, at 30 716 Ibid, at 32 717 Ibid, at 35 718 Ibid, at 32 719 Hamer, op cit, at 527; Hodgson, op cit, at 747 720 Hodgson, op cit ,at 736; See for example Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361

114 | P a g e The process of inferences is therefore more reliant on “adequate material and belief rather than quantitative rules, due to the combination of different versions of facts given by different witnesses; difficult questions as to honesty, accuracy of recollection and partial recall in the reconstruction of events; and the “vexed issue of demeanour.”721

7. Explanation-based reasoning In contrast to mathematical approaches or probability theories, Pardo and Allen argue a judicial inferential process is best served by explanation-based reasoning. For those authors, this model involves the following two steps:

(a) Generating potential explanations of the evidence - in a legal context, this is determined with reference to the substantive law, which itself makes provision for what triggers rights, interests, liabilities and obligations.722 In litigation, this identification process is carried out by the parties themselves, by seeking to satisfy the respective burdens of proof on claims or defenses, through argument and counter-argument as to whether requisite elements are or are not made out, and through offering alternative versions of events as explanations of the evidence. The Court itself may also construct its own potential explanations in reaching its conclusions.723 (b) Selecting the best explanation from the list of potential ones as the actual one - “better- ness” is assessed by weighing explanations against each other on the criterion of: • simplicity; • greater explanation (consilience); • better according with background beliefs (coherence); and • being less ad hoc. It also requires an exercise in considering the “contrastive nature of the explanations involved” to pick out the appropriate foils.724 This is assessed by reference to the relevant standard of proof, having regard firstly to the substantive law, which will require “a sufficiently detailed explanation of the evidence to show the plaintiff is entitled to relief,” and secondly “where the parties choose to disagree focuses the attention on the appropriate details for choosing among contrasting explanations.”725

According to Pardo and Allen, the party who carries the evidentiary burden will be unsuccessful if proffered explanations are equally bad or good, or if there is too little evidence available to differentiate between potential explanations.726 Ultimately:

the more the evidence is explained by, and hence justifies, the party’s explanation of the evidence, the greater the probative value and hence the stronger the inference to the truth of

721 Hodgson, op cit, at 736 and 737 722 Pardo and Allen, op cit, at 229 723 Ibid, at 233-234 724 Ibid, at 229-232 725 Ibid, at 234 and 236 726 Ibid, at 237

115 | P a g e that explanation. The strength of the inference will depend contextually on the other evidence, and the presence of other, contrary explanations.727

Upton makes similar arguments in support of explanatory rather than probability approaches to inference drawing. He argues that inferences may be drawn, based on the governing idea “that explanatory considerations are a guide to inference, that scientists infer from the available evidence to the hypothesis which would, if correct, best explain that evidence.”728 In considering what constitutes the “best” explanation, Lipton distinguishes between concepts of the most probable (or likeliest) explanation, and the explanation that if correct, would provide the greatest degree of understanding (or the loveliest explanation).729 That author favours the latter of these concepts in that the explanation that if correct would provide the most understanding is also likeliest to be correct.730 731An explanation that provides the most understanding means the explanation which explains:

more types of phenomena, explains them with greater precision, provide more information about underlying mechanisms, unify apparently disparate phenomena, or simplify our overall picture of the world.™

Also common with Pardo and Allen, Upton emphasises the need for explanation of what makes the “difference between the fact and foil,”732 namely the need for explanation of phenomena to take “a contrastive form: one asks not simply 'Why P?’, but Why P rather than Q?’”733

8. Other approaches Epstein and King have set out to “adapt the rules of inference used in the natural and social sciences to the special needs, theories, and data in legal scholarship.”734 They divide inferences into two categories, descriptive and causal. Descriptive inferences are made by collecting observations upon which generalisations can be applied about the world based on testing just a small part of it.735 In relation to these observations, it is only the process by which the data came to be observed (i.e. the evidence) and not the status of the author or the investigator itself that is relevant to the inferential value.736 Causal inferences relate to whether one factor or set of factors results in some outcome.737 Epstein and King emphasise the importance of causal inference to the judicial process, notwithstanding the acknowledged uncertainties involved in inferential conclusions, and Courts should:

not change the object of their inferences because causal inference is difficult. Instead they should make their questions as precise as possible, follow the best advice science has to

727 Ibid, at 241 728 Lipton, P. “Inference to the Best Explanation” in Newton-Smith, W. H. (ed) A Companion to the Philosophy of Science, Blackwell, 2000 184 - 193 at 184 and 187 729 Ibid, at 188 730 Ibid, at 189 731 Ibid 732 Ibid, at 190 733 Ibid, at 189 734 Epstein and King, op cit, at 1 and 10 735 Ibid, at 29 and 30 736 Ibid, at 34 and 45 737 Ibid, at 34 - 35

116 | P a g e offer about reducing uncertainty and bias, and communicate the appropriate level of uncertainty readers should have in interpreting their results.738

Epstein and King suggest the most useful approach to estimating uncertainty is to “find the weakest link in the chain of reasoning - the part of the argument that rests on the least empirical evidence or that is the most vulnerable to attack,” and consider if that piece of evidence were changed, whether the conclusion would be assessed as wrong.739 Similarly, hypotheses the subject of causal inference should be tested to ensure that the process by which the data came to be observed is fully recorded,740 and the more data the better,741 as knowing more facts should make for better inferences.742 This also ensures conclusions are able to be replicated,743 and avoids “omitted variable bias” to ensure competing explanations are not ignored.744

Those authors have set out some considerations for measuring variables and deriving estimates in the inferential process. Measurement involves “comparing some aspect of reality with a standard, such as exists for quantities, capacities, or categories”745 Measurements are assessed with reference to:

• reliability, being the extent to which it is possible to replicate a measurement and reproduce the same value;746 and • validity, being the extent to which a new measure is consistent with prior evidence, is unbiased, and is efficient (i.e. has the least variance across several measures).747

Estimations made in the inferential process should also be considered against unbiasedness, efficiency and consistency criteria.748

Josephson has set out a series of factors against which the strength of an inferred conclusion may be determined:

(a) Decisiveness and independence of leading hypothesis - how decisively the leading hypothesis surpasses the alternatives, and is independent of them in that it can stand by itself. For this purpose, hypotheses should be evaluated in isolation or in contrast with others, having regard to internal consistency, plausibility (with reference to consistency with background knowledge), likelihood, simplicity, explanatory power, specificity and productive promise.749 In this way “[cjonfidence comes largely from ruling out or discrediting the alternative explanations.”750

738 Ibid, at 37 739 Ibid, at 50 740 Ibid, at 103 741 Ibid, at 24 742 Ibid, at 102 743 Ibid, at 38 744 Ibid, at 77 745 Ibid, at 81 746 Ibid, at 83 747 Ibid, at 90 - 95 748 Ibid, at 97 - 98 749 Josephson, op cit, at 1626 and 1627 750 Ibid, at 1641 and 1642

117 | P a g e A technique for assessing this is the “Essentials First, Leveraging Incompatibility Strategy,” which involves: • identifying data with only one possible explanation or one that has the lowest ambiguity; • conclude by local abductive inference the best explanation for each low-ambiguity point; • remove hypotheses that are strongly incompatible with accepted hypotheses, reduce the score for hypotheses that are weakly incompatible with accepted ones, accept hypotheses that are hard-implied by accepted ones and increase scores for hypotheses that are soft-implied by accepted ones; and • lower the standards for acceptance and continue to accept hypotheses that are best explanations for some data but which are not best by a large difference.751 (b) Thoroughness of search conducted for alternative explanations - to ensure all plausible hypotheses are included and reduce the risk that narrowness of the contrast set poses for the true explanation being overlooked. Josephson suggests two approaches to this endeavour: • The “Noise hypothesis,” which is a consideration of the extent to which data can be disregarded on the basis that it its explanation is “merely coincidence, misperception, miscategorization, fraud, perjury, experimental error, noise, or some similar phenomena.” • The “New hypothesis,” which considers whether rival hypotheses are based on past experience, lacking adequacy for the current situation and contrary to a new, unprecedented, explanation.752 (c) The strength of the necessity to reaching a conclusion - having regard to whether further evidence can be gathered before making a decision and whether such evidence is or is not significantly likely to reduce uncertainty.753

(d) The costs of being wrong and the rewards of being right.754

Josephson also suggests that, whilst the process of abduction is fallible, incorrect abductive conclusions can only result if false abductive conclusion was overrated, or a true answer was underrated; the true answer was not considered; flaws in the data were caused by the Noise hypothesis; or the true answer was mistakenly thought not to explain important findings. Such errors may arise due to reasoning and logical mistakes, mistaken background beliefs or missing evidence due to an insufficiently broad hypothesis set.755

In a criminal law context, Nesson is critical of the concept of “permissive inferences,” which assist the prosecution by authorizing juries to infer an essential element of a crime (a conclusion relevant to guilt) from proof of some other fact commonly associated with it (the predicate fact).756 According to

751 Ibid, at 1634 and 1635 752 Ibid, at 1626, 1628 and 1629 753 Ibid, at 1626 and 1631 754 Ibid, at 1626 and 1631 755 Ibid, at 1626, 1631 and 1632 756 Nesson, C. R. “Reasonable Doubt and Permissive Inferences: The Value of Complexity,” 92 Harv. L. Rev. 1187 at 1187 and 1210

118 | P a g e that author, such an approach is only acceptable where the inference from predicate to presumed fact is rationally based and its communication is properly framed in its overall circumstantial context. In other words, a naked inference is impermissible and should remain subject to satisfactory explanations to the contrary,757 such that “additional evidence must suffice to differentiate the case from the aggregate of all cases in which the predicate fact appears, in a manner which permits a judgment about what happened in the specific case.”758

9. Conclusion to Chapter 6 This Chapter provided an analysis of general evidentiary theories relevant to inferential reasoning by the Courts. It considered various contributions to thinking in this area, notably the work of John Henry Wigmore and other authors who have built on that author’s approach, explanatory approaches to inferential reasoning, and inference drawing in the cross-cultural context. It also considered specific theoretical issues such as the role for generalisations, “common sense” and background knowledge in inference drawing. Many approaches involve a consideration of equality of allocation of risk of error, and the comparative costs of being wrong and the rewards of being right.

Whilst it is unlikely that Courts will adopt the full-scale methods analysed in this Chapter to determine whether an inference has probative force, judges may still consider how key concepts and steps the subject of these tests are made out against the evidence presented to them.

Considerations in the relevant literature of why inferential reasoning is necessary in the judicial process draws strong parallels with the same questions raised in relation to the matters the subject of Chapter 4. A key point is that Courts should not recoil at the suggestion that what is knowable with certainty is always partial, and that often absolute and objective facts are not determinable. These challenges are the foundation of the need for inferential reasoning, a practice which is widely accepted and in many cases is the only basis upon which disputes can be adjudicated with finality.

To the extent the inferential process relies on:

• Generalisations, judges should test the strength and plausibility of such generalisations against the generality, source and reliability axes, and make a holistic assessment based on the extent to which a generalisation tends to “stack up” towards the right-hand side of each axis. • The “common sense” and background experience of individual judges, individual judges should exercise introspection to be self-aware of their own individual beliefs, values, standards, cultural perspectives and experience, to test whether they bring any inherent biases to the process, and modify their reasoning to offset this if necessary.

Courts should be vigilant for the potential for missing or unavailable evidence that could undo the probability of an inference that may be drawn, and consider if they are satisfied that the parties have cast their evidentiary nets sufficiently wide to avoid putting judges in the position of drawing

757 Ibid, at 1222- 1225 758 Ibid, at 1225

119 | P a g e inferences based on “omitted variable bias.” Possible inferences should be considered and contrasted against all relevant “foils,” so that naked inferences are not accepted without being tested against satisfactory explanations to the contrary.

The analysis included in this Chapter provides useful insights into an area that, as will become apparent in the subsequent chapters, is not (and perhaps cannot be) dealt with in any material way by statute or common law. As previously indicated, the findings of this thesis on Research Question 2 regarding the extent to which the Courts have already developed informal guidelines, is ultimately largely in the affirmative. However, principles for the actual mental processes of inferential reasoning are not apparent from any source based in law. This analysis, like that in Chapter 5, therefore provides a useful input to the Inference Guidelines that might otherwise have been deficient in that regard.

120 | P a g e Chapter 7 - General Laws of Inference

Overview of Chapter 7 This Chapter analyses the general laws regarding the drawing of inferences, particularly as these relate to civil trials. By doing this, it sets out the general principles that provide the groundwork for a similar analysis of these issues in Chapter 8, which is specifically in relation to native title determinations.

Part 1 of this Chapter analyses the clear principles laid down by the Courts in relation to the regulation of what are appropriate inferences and the circumstances in which they are drawn, particularly around reasonableness and on the basis of objective facts and not on the basis of speculation, conjecture or guesswork. Part 2 addresses principles laid down by the Courts for how the relevant standard of proof is to be applied in the inferential process. The matters that will fall short of inferential standards are analysed in Part 3.

Part 4 assesses prospectant and retrospective evidence and proof of custom aspects of inference drawing. Issues in relation to a tactical burden and adverse inferences are the subject of analysis in Part 5. In Part 6, the application of principles and demands on the evidence of expert witnesses to ensure the efficacy of inferences drawn by them is considered. In many respects these have equivalencies with those that the Court applies to itself.

Part 7 then considers some specific approaches taken in various evidence statutes across Australian jurisdictions. This includes inferences that may be drawn from or about authenticity and identity of documents and other things, the accuracy of statements made therein, the contemporaneousness of the recording of the information, any motivations an author may have had to conceal or misrepresent facts, the systematic nature of the recording of the information and the inter-relationship with oral evidence about any disputed occurrences.

1. Basic principles The circumstances in which it is appropriate to draw inferences in civil matters has been considered extensively by the Courts. Dixon CJ summarised the general rules which apply to the drawing of an inference in favour of a plaintiffs case in Jones v Dunkef759 (Jones v Dunkel), as follows:

• An inference must arises as an affirmative conclusion from the circumstances proved in evidence.

• The inference must be established to the reasonable satisfaction of a judicial mind.

• In a civil case, you need only circumstances raising a more probable inference in favour of what is alleged according to the course of common experience.

759 (1959) 101 CLR 298

121 (Page • More probable means that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.

• But such circumstances must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture - the Court cannot choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others.

• The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.760 761

In that case, Kitto J distinguished between conjecture and inference, in that for the latter “some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed. ”767 Further in that case, Menzies J highlighted that inference does not take subordinated evidentiary values to the proven facts upon which they rely, in that “[ijnferences from actual facts that are proved are just as much part of the evidence as those facts themselves.”762

The concepts of inferences and circumstantial evidence are inter-related. Dawson J held in Shepherd v R,763 that “[cjircumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts,” in contrast to “direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved.”764 Gummow, Hayne and Crennan JJ held in R v Hillier,765 “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference” to be drawn.766

There is no compulsion on a Court to expressly state that an inference has been drawn. In Soulemezis v Dudley (Holdings) Pty Ltd767 (Soulemezis), Kirby P (as His Honour then was) held “it is, in my opinion, a mistake to conclude that a judge should or can set forth the reasoning process he has followed from one fact to another.”768 The judicial obligation to give reasons does not “require of trial Judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the Judge's conclusion ... [but merely] to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues.”769

760 Ibid, at 304-305 761 Ibid, at 305 762 Ibid, at 309 763 (1990) 170 CLR 573 764 Ibid, at [4] 765 [2007] HCA 13 766 Ibid, at [46]; See also Plomp v R (1963) 110 CLR 234 767 (1987) 10 NSWLR 247 768 Ibid, at 274 769 Ibid, at 259

122 | P a g e 2. Standard of proof for inferences The standard of proof for inferences in a civil trial is the balance of probabilities. In Martin v Osborn,770 Dixon J described the assessment of the degree of probability involved in this process, as follows:

facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. ... This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.77'

A fact is proved to be true on the balance of probabilities, being the standard of proof applying to disputed material facts in civil trials, if its existence is more probable than not, or if it is established by a preponderance of probability.772

Williams, Webb and Taylor JJ in Holloway v McFeeters773 discussed the standard of proof requirements that apply before an inference can be drawn in a civil case, with reference to the following considerations:

• In the absence of direct proof, “circumstances appearing in evidence give rise to a reasonable and definite inference” are sufficient.

• Such circumstances “must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture.”

• The inference may be drawn, with regard to the course of common experience, where it is more probable from the evidence or admission, left unexplained.

• More probable means that “upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood."774

More recently, as Deane, Gaudron and McHugh JJ held in Malec vJC Hutton Pty Ltd,775 the effect of a Court determining “the probability of the event having occurred is greater than it not having occurred” is that for the purposes of adjudication, “the occurrence of the event is treated as certain.”776 Other tests include that suggested by Spigelman CJ in Seltsam Pty Ltd v McGuinness777 (Seltsam), that the Court must “reach a level of actual persuasion,”778 779and that of Kiefel J in Tabet v Gett,77e that

770 (1936) 55 CLR 367 771 Ibid, at 375 772 Briginshaw v Briginshaw [1938] 60 CLR 336 at 343 per Latham CJ; Rejfek v McElroy (1965) 112 CLR 517 773 [1956] HCA 25; (1956) 94 CLR 470 774 Ibid, at [8], with reference to Richard Evans & Co Ltd vAstley (1911) AC 674 at 687 and the judgment of Dixon, Williams, Webb, Fullagher and Kitto JJ in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; quoted with approval by Stephen J in Girlock (Sales) Pty Ltd v Murrell (1982) 149 CLR 155 at 161 to 162. See also Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd (2013) 118SASR 11 at [72] 775 (1990) 169 CLR 638 776 Ibid, at 642 to 643 777 (2000) NSWCA 262 778 Ibid, at [135] and [136] 779 (2010) 240 CLR 537

123 | Page “such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.”780 781

This standard has been described as a “sliding scale.” Dixon J in Briginshaw v Briginshaw™ (Briginshaw), set out the following considerations relevant to this concept:

• The civil standard of proof “appears to acknowledge that the degree of satisfaction demanded may depend rather on the nature of the issue.”

• Reasonable satisfaction is to be considered with regard to “the nature and consequence of the fact or facts to be proved,” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding.”

• “’reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”782

The Briginshaw principles follow on from Dixon J’s previous judgment, in Sodeman v ft,783 wherein His Honour stated that “questions of fact vary greatly in nature and in some cases greater care in scrutinizing the evidence is proper than in others, and a greater clearness of proof may be properly looked for.”784 The Courts have held that the Briginshaw principles are not to be applied “in the abstract or in a manner divorced from the circumstances of a particular case,” but rather (in addition to matters where criminal conduct or fraud are to be proved) “where the importance and gravity of the consequences flowing from a particular finding are such that it is appropriate to apply it.”785

Thus in Shaw v Wolf,786 Merkel J held that "given the consequences for the defending respondents of an adverse finding, in the present case, good conscience and principle require that the Court should not lightly make a finding on the balance of probabilities, that any of those respondents is not an Aboriginal person as defined in the Act.”787 His Honour so found on the basis of the longstanding identification of the respondents as Aboriginal persons, and their family and community ties and involvement in various Aboriginal organisations, such that a contrary finding would have “severe and deeply personal impact on that respondent’s identity, family and communal relationships as well as his or her future entitlements to participate in programs and organisations for the benefit of Aboriginal persons.”788

Interestingly in the context of native title matters which involve judgments made in rem, O’Loughlin J in Cubillo v Commonwealth789 held “the principles of Briginshaw have equal and like application to persons whether they are, or are not, parties to the litigation.”790 The Briginshaw principles also have

780 Ibid, at [111] 781 (1938) 60 CLR 336 782 Ibid, at 361 - 362 783 (1936) 55 CLR 192 784 Ibid, at 216 785 G yf/(1994) 181 CLR 387 at 399 per Deane, Dawson and Gaudron JJ 786 (1998) 83 FCR113 787 Ibid, at 125 788 Ibid, at 124 to 125 789 [2000] FCA 1084; (2000) 103 FCR 1 790 Ibid, at 117

124 | P a g e statutory effect, in that the Evidence Act s 140(2) provides that the Court may have regard to the gravity of the matters alleged when deciding if a matter is proved to the requisite standard.

The different standard of proof required in criminal proceedings - beyond a reasonable doubt - is such that different principles apply to inference drawing in criminal proceedings. The High Court articulated the difference between the criminal standard of proof and the civil standard, for the purposes of inferential reasoning, in Bradshaw v McEwans.™ There is was held that “the former requires the facts to exclude reasonable hypotheses consistent with innocence whereas the latter needs only circumstances raising a more probable inference in favour of what is alleged.” The High Court went on to discuss what sufficed in the absence of direct proof and certainty of conclusions, as follows:791792 793

it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference, provided that they do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of conjecture. If circumstances are proved in which it is reasonable to find a balance of probabilities in favour of a particular conclusion, it is not to be regarded as mere conjecture or surmise.792

In criminal matters, a distinction is drawn between types of intermediate facts upon which an inference may ultimately be drawn, for the purposes of whether relevant directions should be given to the jury. The two types are:

• Links in a chain facts, which are individually a basis for, and therefore indispensable to, the reasoning involved as the foundation for an ultimate inference, and which therefore must be individually proven to the relevant standard before an inference may be drawn.

• Strands in a cable facts, where an inference may be drawn having regard to all the circumstances or a combination of facts, none of which considered alone would support the inference and notwithstanding one or more of the individual facts cannot be proven to the relevant standard.794

In civil cases, it is the judge’s role to determine the weight attributable to evidence established by inference and whether the burden of proof is satisfied. In Soulemezis, the Court held that weight given may be affected by a judge’s “experience of the significance of that fact in the order of things,” such that the judge’s reasons “may partake as much of intuition based on experience as on formal and deductive reasoning.”795 The judge’s satisfaction of relevant matters:

may depend upon matters subjective to him as well as upon matters common to judges. ... The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume

791 (1951) 217 ALR 1 792 Ibid, at 2 and 5, with reference to Richard Evans & Co Ltd vAstley [1911] AC 674 at 687 793 (1951) 217 ALR 1 at 2 and 5 794 Shepherd v R ('i990) 170 CLR 573 at 579 per Dawson J and 593 per McHugh J\Rv Owen (1991) 56 SASR 397 at 408;R i/ Merritt (1999) NSWCCA 29 at [70]; Davidson v R [2009] NSWCCA 150 at 151 - 152; Burrell v R [2009] NSWCCA 163 at [86] 795 (1987) 10 NSWLR 247, at 273 - 274

125 | Page that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective considerations.796

3. Matters which fall short of inferential standards Various judgments have found that if an inferred fact is merely plausible based on proved facts, then it is only conjecture and an inference is not available.797 798Lord Macmillian held in Jones v Great Western Railway Co\79B

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof.799

Jordan CJ in Carr v Baker,800 held that “[t]he existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists,” but if they merely show it is possible that the fact may exist, this is only conjecture, which may “range from the barely possible to the quite possible.”801 802

The important distinction between a “permissible inference” and a “conjecture” is highlighted throughout the relevant jurisprudence. The House of Lords held in Caswell v Powell Duffryn Associated Collieries Ltd,602 that:

Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture. ”803 804

The High Court noted in Lopes v Taylor604 (Lopes), the difficulty of making the relevant distinctions, in that “[i]n some circumstances it is not easy to fix the boundary line between legitimate inference and conjecture.”805 Similarly, Spigelman CJ in Seltsam observed the “characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division,

796 Ibid 797 Carr v Baker (1936) 36 SR (NSW) 301, at 306-307; Bradshaw v McEwans (1951) 217 ALR 1 at 2 and 5; Nominal Defendant v Owens (1978) 45 FLR 430, at 434;Se/tsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (2009) 179 FCR 169 at [117]; Wotton v State of Queensland (No 5) [2016] FCA 1457 at [116] 798 (1930) 47 TLR 39 799 Ibid, at 45 800 (1936) 36 SR (NSW) 301 at 306 801 Ibid 802 [1940] AC 152 803 Ibid, at 169-170 and referenced in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 and Taylor v Workers Compensation Regulator [2017] QIRC 006 804 (1970) 44 ALJR412 805 Ibid, at 418

126 | P a g e nevertheless the distinction exists,”806 with the test being whether or not it is reasonable to draw the inference.807

In Jackson v Lithgow City Council,808 Allsop P declined an invitation from Counsel for the appellant to infer by effectively choosing the most likely guess, and held “[t]he inference must be available and be considered to be more probable than other possibilities.”809 810 811

In the case of Coles Supermarkets Australia Pty Ltd v Bright,8'0 the New South Wales Court of Appeal held:

A finding of fact essential to a conclusion as to liability must be established on the balance of probabilities and not merely by guesswork or speculation where the evidence is effectively silent, as explained by Dixon CJ in Jones v Dunkel. There is no bright line distinction to be drawn between inferences based on common experience and guesswork or speculation, but the distinction depends upon the plaintiffs obligation to establish an affirmative satisfaction as to the fact based on probabilities.8"

4. Prospectant evidence, retrospective evidence and proof of custom There are a number of other specific forms of circumstantial evidence that have been recognised by the Courts, of relevance to this thesis. Firstly, there is “Prospectant Evidence,” which applies where “the occurrence of an act, state of mind or state of affairs in the past justifies an inference that the act was done, or state of mind or affairs existed, at the moment of time into which the Court is inquiring.”812One example of this is the “Presumption of Continuance,” a presumption that something continues unless there is evidence that it has ceased. This was described in the New South Wales Court of Criminal Appeal as being “no more than a convenient way of describing a process of logical reasoning involving the drawing of inferences from established facts.”813

There is also “Retrospective Evidence,” which Atkinson J (drawing on Heydon) described in Astway Pty Ltd v Council of the City of the Gold Coast City8" as “a type of circumstantial evidence in which the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that the act was done, or that the state of mind or affairs previously existed.”815 As an example, the Court “may also be asked to infer from the existence of indigenous customs at a certain date their existence at an earlier date.”816

806(2000) NSWCA 262 at [84], 807 Ibid, at [88], drawing from the judgment in Bradshaw v McEwans, (1951) 217 ALR 1 at 5 and its application in Luxton v Vines [1952] 85 CLR 352 at 358. 808 [2008] NSWCA 312 809 Ibid, at [12] 810 [2015] NSWCA 17 811 Ibid, at [17] 812 Heydon, op cit, at 17 813 R v Noonan (2002) 127 A Crim R 599 at [18] 814 [2008] QCA 73 815 Ibid, at [43]; Heydon, op cit, at 28 to 29 816 Heydon, op cit, at 29, referring to Gumana v Northern Territory of Australia (2005) 141 FCR 457 at [195] - [202] and Harrington-Smith v State of Western Australia (No 9) (2007) 238 ALR 1 at [341] - [350]

127 | Page Another form of inferential reasoning-based evidence is proof of custom, which Heydon identifies as an exception to the general rule that a Court cannot treat as a fact that proved through evidence in a previous case. This is because “a time must come when the courts, having had the question of the existence of a custom before them in other cases, are entitled to say that they will take judicial notice of it and will not require proof in each case.”817 818Examples 819 of proof of custom in the general law include Hammerton v Honey,6™ where Jessel MR held the “usual course” of evidencing proof of custom, in circumstances where actual usage in all time was impossible to prove by living testimony, was as follows:

Persons of middle or old age are called, who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all time.6™

Similarly in Brocklebank v Thompson,820 Joyce J held that rights enjoyed with a regular usage of 20 years that were unexplained and uncontradicted, are deemed to have had a legal origin and to have commenced beyond legal memory, as an immemorial custom and right.821

5. Tactical burden and adverse inferences Failure by a party that does not bear the onus of proof to produce evidence in response to the party that does can raise a risk of the Court drawing an inference in favour of the latter party. This was explained by Mason CJ, Deane and Dawson JJ stated in Weissensteiner v R,822 823as follows:

when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence.623

Their Honours held this “is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence,” but rather “because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.”824

Similarly, Heydon J in Strong v Woolworths Limited825 explained there is an evidential, provisional or tactical burden on a defendant arising in “circumstances in which a plaintiff calls evidence sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in the plaintiffs favour.” 826 His Honour held that if the defendant does not call evidence of weight:

817 Heydon, op cit, at 213 818 (1876) 24 WR 603 819 Ibid, at 604 820 [1903] 2 Ch 344 821 Ibid, at 350. See also New Windsor Corporation v Mellor [1975] Ch 380, at 386 and 391 822 (1993) 178 CLR 217 823 Ibid, at [28] 824 Ibid 825 (2012) 246 CLR 182 826 Ibid, at [53] and [60]

128 | P a g e it will run a risk of losing on the issue - that is, a risk that at the end of the trial the trier of fact will draw inferences sufficiently strong to enable the plaintiff to satisfy the legal (ie persuasive) standard of proof.827

A shifting of the “provisional” or “tactical” burden is similar in consequence to “adverse inferences.”828 The concept of an adverse inference derives from the “Rule in Jones v Dunkel."829 830Heydon 831 832has summarised the Rule in Jones v Dunkel as follows:

An unexplained failure by a party to give evidence (including calling witnesses, tendering documents or providing material to an expert witness) may lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case. The rule applies to both the bearer of the burden of proof and the other party.880

Relevant passages from the decision in Jones v Dunkel include the following, from the judgment of Kitto J:

any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied upon as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.881

In that case Menzies J similarly held:

where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.882

Windeyer J’s judgment in Jones v Dunkel referred833 834to the judgments of Abbott CJ and Best J in f? v Burdett,884 who considered that where “the opposite party has it in his power to rebut” a presumption “by evidence, and yet offers none; for then we have something like an admission that the presumption is just,” and that where a party “offers no explanation or contradiction” to evidence given that invites such explanation or contradiction, “can human reason do otherwise that adopt the conclusion to which the proof tends?”835 836

One purpose of the Rule in Jones and Dunkel is, as set out by Newton and Norris JJ In O’Donnell v Reichard,886 “in deciding whether to draw inferences of fact, which are open [to the Court] upon evidence which has been given, ... in relation to matters with respect to which the person not called

827 Ibid 828 As discussed in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349 at [76] 829 The effect of which was summarised by Hutley JA in Payne v Parker [1976] 1 NSWLR 191 at 194 as being to “cut back some of the consequences of the basic assumption of the adversary system of proof, namely, that parties may withhold evidence, and witnesses who may assist the court, if it is to their own advantage.” 830 Heydon, op cit, at 38 831 (1959) 191 CLR 298 at 308 832 Ibid, at 312 833 Ibid, at 321 834 (1820) 4 B & Aid 95; (1820) 106 ER 873 835 Ibid, at 122 and 161-162 836 [1975] VR 916

129 | P a g e as a witness could have spoken.”837 In G v H, Deane, Dawson and Gaudron JJ considered that two inferences might be drawn in the relevant circumstances, namely “the evidence, if called, would not assist the party’s case,” and that “the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.”838 839

Both Heydon and Hodgson JA in Ho v Powell829 (Ho) have recognised the rule in Jones v Dunkel as a particular application of the principle set down by Lord Mansfield CJ in Blatch v Archer,840 that “all evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted.”841 Heydon links this maxim to the problem of deciding issues of fact on the civil standard of proof, which Hodgson JA identified in Ho as being not just regarding the question “what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.”842 The rule entitles the Court “more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence.”843 The rule is capable of acting against both parties of a proceeding regardless of who bears the burden of proof.844

There are a number of important qualifications in relation to the rule in Jones v Dunkel.845 Firstly, the inference in favour of the other party must be able to be drawn from evidence brought by that party in any case. As stated by Heydon, ‘[t]he rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference.”846 In Insurance Commissioner v Joyce,847 Dixon J held that the circumstances of the rule “does not authorize the court to substitute suspicion for inference or to reverse the burden of proof or to use intuition instead of ratiocination.”848 849The Supreme Court of New South Wales in Dilosa v Latec Finance Pty Ltd (No 2),849 held the context of the rule “will not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the opposing party.”850 The High Court held in Lopes, “[t]he failure of a party to give evidence may, in some cases, tend to strengthen an inference to which proved facts give rise: but it cannot of itself lead to any inference.”851 A failure by an appellant to call evidence therefore merely “gives the Court more

837 Ibid, at 929 838 (1994) 101 CLR 298 at [22]; See also Shalhoub v Buchanan [2004] NSWSC 99; and Manly Council v Byrne [2004] NSWCA 123 at [51] 839 (2001) 51 NSWLR 572 840 (1774) 1 Cowp 63 841 Ibid, at 65; Heydon, op cit, at 45, (2001) 51 NSWLR 572 at [15] and [16] 842 Heydon, op cit, at 45; (2001) 51 NSWLR 572 at [14] 843 Heydon, op cit, at 40, and quoted with approval by Heery J in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136 at [50] 844 Ho v Powell (2001) 51 NSWLR 572 at [16] 845 The qualifications listed here are those relevant to this thesis and are not exhaustive. For example, other qualifications include the rule cannot be applied to the “non-calling of a witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness, or where the missing witness would be expected to be called by one party rather than another” - Payne i/Par/cer [1976] 1 NSWLR 191 at 201-202; and that the “rule has no application if the failure to call the witness is satisfactorily explained or readily understood” - Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336, at 343. 846 Heydon, op cit, at 40 to 41; Commonwealth Director of Public Prosecutions v Hart [2010] QDC 457 at [32] 847 (1948) 77 CLR 39 848 Ibid, at 61 849 (1966) 84 W.N. (Part 1) (NSW) 557 850 Ibid, at 582 851 (1970) 44 ALJR 412 at 418

130 | P a g e confidence in drawing in favour of the respondent inferences open from the facts proved in evidence.”852

More recent cases have taken an equivalent approach. As stated by Fullagher J. in Department of Health v Arumugam,853 "[i]t can enable already available inferences to be drawn against dishonest explainers with greater certainty, but that is all.”854 The Federal Court in Lek v Minister for Immigration, Local Government and Ethnic Affairs,855 similarly held that “the principle applies only if there is already material that would support the drawing of that inference.”856

Secondly, the rule applies only where a party is “required to explain or contradict” something, that is, where evidence is given of facts “requiring an answer,” that the rule applies.857 As described by Moffitt JA in Nuhic v Rail & Road Excavations,858 it applies in circumstances where absent evidence by a defendant, “the case of the plaintiff is left somewhat as it was at the beginning, based on inferences against each defendant.”859

Thirdly, the tribunal of fact must be able to conclude that the party who fails to give evidence “probably would have knowledge.”860 As Fisher J noted in Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2J,861 “[t]his inference is particularly appropriately drawn when the facts are peculiarly within the knowledge of the silent party.”862

Importantly, the Courts have the ability, but are not compelled, to draw inferences if these matters are established.863 864

6. Inference in expert evidence The Courts have acknowledged that not only do they draw inferences in determining matters at trial, but so too do expert witnesses in the evidence they present. In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5),864 Lindgren J accepted a definition of opinion as “an inference from observed and communicable data.”865 The same definition was accepted by Branson J in Quick v Stoland Pty Ltd,866 and by the High Court in Dasreef Pty Ltd i/ Hawchar.867

In R v Tang,868 Spigelman CJ held that “knowledge” for the purposes of s79 of the Evidence Act means:

852 Ibid, at 422 853 [1988] VR 319 854 Ibid, at 330 855 (1993) 43 FCR 100 856 Ibid, at 124 857 Heydon, op cit, at 41; drawing on the words of Windeyer J. in Jones v Dunkel (1959) 101 CLR 298 at 322 and as quoted with approval in Fonterra Brands (Australia) Pty Ltd v Viropoulos (No 3) [2015] FCA 1050 at [103] 858 [1972] 1 NSWLR 204 859 Ibid, at 221 860 Payne v Parker [1976] 1 NSWLR 191 at 202 per Glass JA 861 (1979) 26 ALR 609 862 Ibid, at 639 863 Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 at 267 864 (1996) 64 FCR 73 865 Ibid, at 75 866 (1998) 87 FCR 371 at 373 867 (2011) HCA 21 at [53], Contrast Rv Perry (No. 4) (1981) 28 SASR 119 at 124 per Cox J 868 [2006] NSWCCA 167; (2006) 65 NSWLR 681 at [138]

131 [Page more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on ‘good ground’.869 870

Because of the accepted inferential nature of much expert witness evidence, the Courts have imposed similar requirements upon the experts to those said to apply to judicial reasoning itself. Fullagher J held \r\ Rv Jenkins; Ex parte Morrison (No 2),670 that an expert witness must “explain the basis of theory or experience.”871 Various judgments have referred to the need for expert evidence to “consist of argument as to the conclusions that should be drawn from the facts,” rather than mere advocacy.872 In this regard, the Courts require that the facts which underpin an expert’s opinion (which constitute factum probans) must be expressly stated for the judge or jury to make a proper assessment of the opinion.

The decision of the High Court in Paric v John Holland (Constructions) Pty Ltd873 qualifies the requirements, in that whilst the facts upon which an opinion is based must be proved by admissible evidence, “that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based.”874 Anderson J in Pownall v Conlan Management Pty Ltd,875 held that “[ejxpert evidence ... must be comprehensible and reach conclusions that are rationally based. The process of inference that leads to the conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them.”876

In HG v The Queen,877 Gleeson CJ said of an expert’s evidence “[i]t would have required identification of the facts he was assuming to be true, so that they could be measured against the evidence; and it would have required or invited demonstration or examination of the scientific basis of the conclusion.”878 In that case, His Honour considered the expert evidence to be “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.”879

Heydon JA (as His Honour then was) in Makita (Australia) Pty Ltd v Sprowles,880 held in favour of there being a "Basis Rule” in the Australian law governing expert evidence, in that “it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached.”881 His Honour held that experts have a prime duty to “furnish the trier of

869 Ibid, at [138], with reference to Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) at 590 870 [1949] VLR 277 871 Ibid, at 303 872 Clark v Ryan (1960) 103 CLR 486 at 492 per Dixon CJ; Polivitte Ltd v Commercial Union Assurance Co Pic [1987] 1 Lloyd's Rep 379 at 386 per Garland J; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 350 to 351; ULV Pty Ltd v Scott (1990) 19 NSWLR 190 at 205; Re J (1990) FCR 193 at 226 per Cazalet J 873 [1985] HCA 58; 59 ALJR 844 874 Ibid, at [9] 875 (1995) 12 WAR 370 876 Ibid, at 389 - 390 877 (1999) 197 CLR 414 878 Ibid, at 428 879 Ibid, at 428 880 (2001) NSWCA 305 881 Ibid, at [85]

132 | P a g e fact with criteria enabling evaluation of the validity of the expert’s conclusions.”882 Similarly, Heydon JA in Rhoden v Wingate883 held that “[t]he opinion evidence may be admitted if there is evidence which, if accepted, is capable of establishing the truth of the assumptions.”884

In Australian Securities and Investments Commission v Rich885 (Rich), Spigelman CJ held that an expert’s ““prime duty” is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.”886 His Honour also clarified that these matters go not to admissibility, but to weight (as subsequently confirmed in various cases including by the majority of the High Court887), in that:

The issue for a trial judge is whether the opinion expressed to be based on the facts proved or assumed is correct. In determining this issue, the judge will have regard, amongst other things, to the reasoning process (based on those facts) used by the expert. ... Once the opinion is capable of being based on the proved facts, it is admissible.888

These requirements are reinforced by the Federal Court’s Expert Evidence Practice Note, which annexes the Harmonised Expert Witness Code of Conduct approved by the Council of Chief Justices' Rules Harmonisation Committee889 (Expert890 Witness Code). The Expert Witness Code seeks to deal with many of the issues inherent in inferential reasoning (and provide transparency around any inferential process adopted by the witness, by adopting requirements for expert reports that include:

• The assumptions and material facts on which an opinion is expressed, and any literature or other materials, examinations, tests or other investigations, or the acceptance of another person’s opinion, relied on or utilised in support of such opinion.

• A declaration that the expert has made all the inquiries that the expert believes are desirable and appropriate (save for any matters identified explicitly in the report), and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court.

• Any qualifications on an opinion expressed in the report or whether any opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason.800

882 Ibid, at [59] 883 [2002] NSWCA 165 884 Ibid, at [86] 885 [2005] NSWCA 152 886 Ibid, at [92], [105] and [132] 887 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [16], [85] and [87]; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 at [7]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 536 at [61]; Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage (2013) 298 ALR 532 at [176] and [177]; Taub v R. [2017] NSWCCA 198 at [31] 888 [2005] NSWCA 152 at [136] 889 Federal Court of Australia Expert Evidence Practice Note (GPN-EXPT), J L B Allsop, Chief Justice, 25 October 2016, http://www.fedcourt.qov.au/law-and-Dractice/Dractice-documents/practice-notes/qDn-expt (accessed on 5 November 2017) 890 Ibid, at Annexure A, paragraph 3

133 | Page 7. Statutory guidance for inference drawing Sections 58 and 183 of the Evidence Act provide that if a question arises about either:

• the relevance of; or

• the application of a provision of that Act (such as that opinions stated in a report are based on specialised knowledge and experience,891 or the business records exemption to the hearsay rule892) in relation to, a document or thing, the Court may examine the document or thing, and draw any reasonable inferences from it. In relation to relevance, such an inference may include (without limitation) the document or thing’s authenticity or identity. In relation to questions about the application of a provision of the Evidence Act, the Court may also draw inferences from other matters from which inferences may properly be drawn.

These provisions are replicated in the evidence legislation of various other Australian jurisdictions.893 894

How the authenticity of a document or thing can be inferred has been the subject of consideration in a number of cases. The importance of this derives from the needs to establish authenticity of a document before its admissibility can be considered. As the Court held in Rich, there would be an:

absurdity for the law to dispense on a general basis with the need to prove the authenticity of a document, for that would “put the court entirely in the hands of whatever a document which a party chose to tender purported to be, subject to whatever opportunity another party had of overcoming its apparent effect.,%94

The premise commonly adopted by the Courts as a starting point is that establishing authenticity cannot be achieved solely by drawing inferences from the face of a document where there is no other evidence to indicate provenance.895 In Trimcoll Pty Ltd v Deputy Commissioner of Taxation,896 the New South Wales Court of Appeal held:

the relevance of a document in the particular proceedings may depend on the identity of its author, when it was created and whence it was extracted, whereas its authenticity depended on whether the document is what it purports to be; there is no entirely clear dividing line between questions of authenticity and identity and each may provide a basis for admissibility897

891 Owners of Strata Plan 58041 v Temelkovski [2014] FCA 2962 at [69] in relation to s 79 of the Evidence Act 1995 (Cth) 892 GlaxoSmithKline Consumer Healthcare Investments (Ireland) (No. 2) LtdvApotex Pty Ltd [2016] FCA 608 at [342] in relation to s 69 of the Evidence Act 1995 (Cth) 893 s 58 Evidence Act 1995 (No 25) (NSW); s 58 Evidence Act 2008 (Vic); s 58 Evidence Act 2001 (Tas); s 58 Evidence Act 2011 (ACT); s 58 Evidence (National Uniform Legislation) Act (NT); s 183 Evidence Act 1995 (No 25) (NSW); s 183 Evidence Act 2008 (Vic); s 183 Evidence Act 2001 (Tas); s 183 Evidence Act 2011 (ACT); s 183 Evidence (National Uniform Legislation) Act (NT) 894 (2005) 216 ALR 320 at [116], quoting Bryson J in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 at 315. See also Collins v Department of Finance & Deregulation (No. 3) [2012] FMCA 860 at [29] 895 Australian Securities and Investments Commission v Rich (2005) 216 ALR 320 at [117], with reference to Bryson J in National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 896 [2007] NSWCA 307 897 Ibid, at [30]

134 | P a g e In Collins v Department of Finance & Deregulation (No. 3),898 the Court held that “[t]he nature of the document, and the detail that it contains ... would enable the Court to infer from the face of the document that it is authentic.”898899

In relation to inferences drawn from a document or thing in the context of questions as to the application of other provisions of the Evidence Act, Schmidt J in Itaoui v Yamaha Motor Finance Australia Pty Ltd900emphasised the significance that where the relevant section applies, the Court may also draw reasonable inferences from other matters. In that cases this was held to include the oral evidence of the appellant, the result of which was to find:

The conclusion that the documents had to be given but little weight in the face of the other evidence which his Honour dealt with, was open.90'

The Evidence Act, at s 54, also relevantly provides for the drawing of any reasonable inferences from what the Court sees, hears or otherwise notices during a demonstration, experiment or inspection.902

In Australian jurisdictions where uniform evidence provisions have not been adopted, there are various different provisions that relate to the capacity of Courts to draw an inference. Matters which relate to admissibility of documentary evidence include the ability of the Court to draw reasonable inferences from the form or contents of the document in which the statement is contained, or from any other circumstances.903

In addition, these provisions also deal with weight to be attached to evidence. Weight is to be estimated having regard to the following matters common to the legislation of each jurisdiction:

(a) All the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement. (b) Whether or not the statement was made, or the information recorded in it was supplied, contemporaneously with the occurrence or existence of the facts stated or to which the information relates. (c) Whether or not the maker of the statement, or the supplier of the information recorded in it, or any person concerned with making or keeping the document containing the statement, had any incentive to conceal or misrepresent facts.904

The Evidence Act 1906 (WA) s 79D also includes the following additional considerations in this regard:

(a) Whether or not the information in the statement was of a kind which was collected systematically. (b) Whether or not the information in the statement was collected pursuant to a duty to do so.

898 [2012] FMCA 860 899 Ibid, at [32] 900 [2009] NSWSC 1363 901 Ibid, at [17] 902 As also provided for in s 54 Evidence Act 1995 (No 25) (NSW); s 54 Evidence Act 2008 (Vic); s 54 Evidence Act 2001 (Tas); s 54 Evidence Act 2011 (ACT); s 54 Evidence (National Uniform Legislation) Act (NT) 903 Evidence Act 1929 (SA) s 34C(5); Evidence Act 1906 (WA) s 79C(5)(a); Evidence Act 1977 (Old) s 96(1) 904 Evidence Act 1929 (SA) s 34D; Evidence Act 1906 (WA) s 79D(1 )(a) and (b); Evidence Act 1977 (Old) s 102

135 | P a g e (c) Where the statement wholly or in part reproduces or is derived from information from one or more devices, the reliability of the device or devices. (d) Where the statement reproduces or is derived from any information, the reliability of the means of reproduction or derivation.905

Further, the Western Australian legislation provides that where there is a dispute over whether an event occurred, and any system has been followed to record the happening of events of that type, oral or other evidence to establish that there is no record of the happening of the event is admissible to prove that the event did not happen. A court may require production of the whole or part of the record concerned. The Court still has the power to exclude such evidence if it is produced, and upon a failure by a party to produce the applicable records, the Court may reject the evidence. In estimating the weight to attach to such evidence, the Court shall have regard to similar matters referred to at paragraphs (a) and (b) above, but also whether any person concerned with the making or keeping of the relevant record had any incentive to omit recording the happening of the event in question.906

8. Conclusion to Chapter 7 This Chapter analysed the how general case and statute laws govern the drawing of inferences, particularly in civil trials. Of direct relevant to the findings on Research Question 2, the Courts have laid down clear principles in relation to appropriate circumstances for inferences. These apply in circumstances of what is reasonable and on the basis of objective facts. An inference (factum probandum) must have a basis in proven, objective facts (factum probans). The proposed inference must be more than merely plausible and be more probable or of greater likelihood than any alternative inference that may be drawn. These factors should be considered on a continuum, and are in contrast to speculation, conjecture or guesswork.

The Courts have also laid down clear principles about the application of the balance of probabilities standard of proof to inferential reasoning in civil trials, including how this standard applies with regard to the gravity of the consequences flowing from a particular finding. Specific principles have also been established where inferences apply in relation to prospectant and retrospective evidence and proof of custom, as well as principles in relation to adverse inferences and a tactical burden in circumstances where parties fail to call evidence to rebut that of the other party.

The Courts (in case law and guidelines) have also developed principles relevant to the presentation of evidence by expert witnesses. Courts can adopt a consistent approach to their assessment of the validity of inferences drawn by expert witnesses, by scrutinising these through the same principles that judges themselves apply in their inferential reasoning.

The Evidence Act empowers the Courts to determine admissibility and weight to be afforded to documentary evidence, having regard to other evidence such as the oral evidence of the opposite party. This may become relevant where the Court has to consider the authenticity of archival records

905 Evidence Act 1906 (WA) s 79D(1 )(c) to (g) 906 Ibid, s 79F

136 | P a g e having regard to the context and genre considerations discussed in Chapter 4. There are also a number of statutory approaches taken across various Australian non-uniform evidence legislation jurisdictions, which are useful concepts to have regard to in discretionary considerations regarding the weight to be afforded matters in inferential reasoning, in light of the problems of the archive.

Importantly, these principles apply across many and various areas of law. For the most part, they are applied consistently (and where not applied consistently, this appears to have been largely resolved in the consensus of subsequent and binding precedent). This analysis therefore supports an affirmative finding in relation to Research Question 2. These clear principles also provide a useful commencement point for the relevant principles in the Inference Guidelines, including as a foundation for those matters that apply in relation to native title determinations specifically, which are the subject of Chapter 8.

137 | P a g e Chapter 8 - Inference drawing in native title determinations - successes and challenges

Overview of Chapter 8 This Chapter provides an analysis of the approaches taken by the Federal Court, the Full Federal Court, the High Court, and in some instances State Courts, to inferential reasoning relevant to the connection requirements in a native title determination. Where equivalent issues are at stake, the analysis also includes reference to determinations from other jurisdictions, particularly Canada.

This Chapter is not intended to capture every instance of judicial inference in native title determinations, as to do so would far exceed the limits applicable to this thesis. The focus is on identifying clear principles that have emerged, both in general terms and how specific issues were approached, in reaching findings on connection, so that these can be considered in the development of the Inference Guidelines. The focus also seeks to strike a balance between the landmark, earlier native title decisions which have influenced the Court’s approach in subsequent cases, and more recent decisions as indications of the most current approaches taken to the task.

Part 1 of this Chapter sets out instances where the Courts have identified some of the specific issues that create evidentiary challenges for native title claimants (in addition to those already noted elsewhere in this thesis) and where the Courts have emphasised the need to draw inferences as a remedy for these difficulties.

Part 2 analysis the key issues the Courts have set out as foundational to inferential reasoning in native title claims. Part 3 presents the "Gumana Principles” enunciated by Selway J in Gumana and how these have been adopted by Courts since the date of that judgment. Part 4 analyses the approach taken by Courts to drawing inferences at the relevant points in time identified in the Gumana Principles. Parts 5, 6 and 7 address the issues specific to assessing genealogical evidence, evidence of geographic boundaries, and expert evidence respectively. Part 8 identifies instances of where the evidence was insufficient to found inferences in favour of a successful native title determination, and analyses the bases for this.

Part 9 builds on Part 8, in analysing how overlapping and competing native title claims raise particular complexities that the Court will need to consider in the inferential process. Parts 10 and 11 then provide an analysis of specific issues relevant to inferential reasoning in disregarding prior native title extinguishment under the Native Title Act, and adverse inferences and the tactical burden respectively. This Chapter then concludes in the usual way with a summary of the issues arising from the analysis, which will feed into the Inference Guidelines in Chapter 9.

138 | P a g e Overall, the native title jurisprudence provides a number of sound and clear principles which can be adopted in the Inference Guidelines.

1. Acknowledgement of challenges and need for inference The challenges in the evidence base for native title claimants has been identified in numerous judgments. Lee J in Ward noted the need to interpret evidence having regard to “the disadvantage faced by Aboriginal people as participants in a trial system structured for, and by, a literate society when they have no written records and depend upon oral histories and accounts.”907 Olney J in Yarmirr, identified similar challenges, in that “[a]ny proceeding in which the Court is required to make findings as to traditional laws and customs practised more than 150 years ago must necessarily rely upon evidence other than that of the personal observations of witnesses.”908 Nicholson J in Daniel more expansively set out the applicable challenges, as quoted by the ALRC report and set out in Part 5 of Chapter 2.

Similarly, consistent with the issues discussed in Chapter 4, on appeal Merkel J in Yarmirr FC identified the desirability “for the courts to consider whether the historical record or account of observers at the time, whether trained or untrained, is not invalidated by a particular preconception, bias or prejudice of the author.”909 These issues were also identified by Black CJ in Yorta Yorta FC, where His Honour urged caution regarding a reading of archival records of observations of Aboriginal people in mid-colonial times, in that “[t]he external and casual viewer of another culture may see very little because the people observed may intend to reveal very little to an outsider, or because the observer may be looking at the wrong time, or because the observer may not know what to look for.”910

Lindgren J noted the same issues in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9J911 (Wongatha No 9), describing these as a “conundrum” created by the proliferation of “alien observers,” the absence of pre-contact records, “and the post-contact... recorders could document only a situation already disturbed ... as a result of the European influence.”912

Other judges have been vigilant of the influence of their own, equivalent, preconceptions. Madgwick J in Gale v Minister for Land & Water Conservation (NSW)9™ (Gale), noted that “as a non-Aboriginal lawyer, I may be ethnocentrically over-attracted to the writings of white authority figures ... themselves possibly even at risk of ethnocentric over-attraction to written records.”914 Similarly in

907 (1998) 159 ALR 483 at 504 908 (1998) 82 FCR 533 at [21] 009 [1999] FCA 1668 at [351]. Mansfield J made similar comments in Risk v Northern Territory of Australia, [2006] FCA 404 at [135], with reference to Daniel v State of Western Australia [2003] FCA 666 at [149]. See also Shaw v I/Vo//'(1998) 83 FCR 113 at 130 to 131, and Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 at [365] 910 [2001] FCA 45 at [58]. A similar approach was taken by Merkel J in Rubibi Community v State of Western Australia [2001] FCA 607 at [37] 911 [2007] FCA 31 912 Ibid, at [349] 913 [2004] FCA 374 914 Ibid, at [43]

139 | P a g e Bennell, Wilcox J noted the need to “make allowances for the author’s (and one’s own) assumptions and prejudices, including any tendency to view the Aboriginal society through a Eurocentric lens.”915

To mitigate these and other challenges, the Courts have been willing to draw inferences relevant to connection in native title determinations. As noted in the introduction to this thesis, Kirby P (as he then was) identified such challenges in Mason, and on the basis of them favoured a common sense approach because “[t]he common law, being the creation of reason, typically rejects unrealistic and unreasonable principles.”916 His Honour therefore found that, had there not been other evidentiary challenges, matters relevant to connection could have been inferred and that “[i]n more traditional Aboriginal communities the inference will be quite easily drawn.”917

Thus in Narrier, Mortimer J held that in native title cases there is a greater than usual “role for inferential reasoning, because of the passage of time between the circumstances at or before sovereignty, and the circumstances prevailing at the time the Court must determine,” and “the paucity and nature of any broadly contemporaneous evidence” concerning the historical situation.918 Similarly Her Honour held in Dempsey, that “[ejven with efforts at obtaining preservation evidence, the knowledge of the old people of any claimant group can only reach back so far. There will be a gap in time, which must be filled — if it can be filled — by the drawing of inferences.”919

The Canadian Courts have also developed significant jurisprudence surrounding the acknowledgment of these issues. In Hamlet of Baker Lake v Minister of Indian Affairs,920 Mahoney J held that relevant evidence was extremely meagre by virtue of its subject matter and the limited records made of the claimants’ history, as:

Their resources did not interest early traders; their nomadic ways and tiny camps did not arouse the enthusiasm of missionaries. Snow houses leave no ruins and, until the proto- historic period, most of their tools and weapons were made of local materials which, like themselves, their dogs and tents, were organic and, hence, biodegradable. ... Two or three witnessed incidents may well reflect a reality of countless unwitnessed incidents.921

Lamer CJ of the Canadian Supreme Court identified in ft v Van der Peel922 (Van der Peet) that a court should “interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in.”923 Similarly, in Delgamuukw v British Columbia924 (Delgamuukw CSC) Lamer CJ noted the responsibility of the Court to “adapt the laws of evidence so that the aboriginal perspective on their practices, customs and traditions and on their relationship with the land, are given due weight by the courts. In practical terms, this requires the

915 [2006] FCA 1243 at [106] 916 (1994) 34 NSWLR 572 at 588 917 Ibid 918 [2016] FCA 1519 at [389] and [390] 919 [2014] FCA 528 at [132]; see also CG (Deceased) on behalf of the Badima People v State of Western Australia [2015] FCA 204 at [17] per Barker J 920 (1919) 107 DLR (3d) 513 921 Ibid, at 540 922 [1996] 2 SCR 507 923 Ibid, at [68] 924 (1997) 153 DLR (4th) 193

140 | P a g e courts to come to terms with the oral histories of aboriginal societies, which, for many aboriginal nations, are the only record of their past.”925 926

2. Foundations for inferential reasoning A qualification by Lamer CJ in Van der Peef to the remarks referred to in Part 1 of this Chapter provides a useful frame in which to consider (and perhaps temper) the foundations for inferential reasoning in native title cases. His Honour found “a court must take into account the perspective of the aboriginal people claiming the right,” but that these perspectives “must be framed in terms cognizable to the Canadian legal and constitutional structure,” namely the perspective of the common law as “[t]rue reconciliation will, equally, place weight on each.”026

In this sense, the Australian Courts have been careful to ensure that legally justifiable approaches are taken to inferential reasoning. Notwithstanding the special nature of the evidence, there still must be evidence in support of and forming a foundation for the inference. Thus Gleeson CJ, and Gummow and Hayne JJ in Yorta Yorta HC held that whilst the native title claimants may be confronted with difficult problems of proof and will therefore invite the Courts to draw inferences as to the situation in earlier times, “the difficulty of the forensic task which may confront claimants does not alter the requirements of the statutory provision.”927 Their Honours therefore held that “[mjuch will... turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.”928 In the same manner, Finn, Sundberg and Mansfield JJ held in Bodney v Bennell929 (Bodney), that “the evidence must be capable of supporting an inference of communal ownership of native title derived from the community’s laws and customs.”930

Similarly, in De Rose O’Loughlin J held that anything other than an inferential approach in the face of the incomplete historical record would place a “manifestly oppressive” burden of proof on the claimants, who had a wholly oral tradition that was traceable for only 3 to 4 generations.931 However, His Honour held that such inferences were subject to there being “a proper foundation for me to do so ... and the best evidence available provides some support for the presence of that connection in the past (traceable by various means such as ancestors, marriage, migration and incorporation and even tribal disputes and wars).”932

Barker J’s judgment in Badimia highlights the need for the Court to consider the evidence as a whole, having regard to the evidence presented by the claimants balanced against conflicting expert

925 Ibid, at [84] 926 [1996] 2 SCR 507 at [49] and [50]. Followed by Lamer CJ in Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at [82] 927 (2002) 214 CLR 422 at [80] 028 Ibid. McIntyre argues the High Court prescribed an “Inference of Continuity,” whereby “[t]he evidence as a whole must lead to an inference that the laws and customs are those of a normative system of a society which existed at the time of the assertion of British sovereignty.” McIntyre, G. “Native Title Rights after Yorta Yorta” [2002] JCU LawRw 9 http://www.austlii.edu.aU/au/iournals/JCULawRw/2002/9.html (accessed 9 January 2018) 929 [2008] FCAFC 63 930 Ibid, at [152], with reference to Northern Territory of Australia vAlyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [80] 931 [2002] FCA 1342 at [570]. Mansfield J held similarly in Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [94] 932 [2002] FCA 1342 at [570], Upheld on appeal by Wilcox, Sackville and Merkel JJ held in De Rose v State of South Australia [2003] FCAFC 286 at [259]

141 [Page evidence (including differences between experts) and a conclusion reached based on the drawing of inferences and on the balance of probabilities.933 His Honour held that “[i]n some cases, the direct evidence of witnesses is of a detail and depth, that is, a quality, that enables the Court to reasonably infer, on the basis of the direct Aboriginal evidence and reputation in the relevant Aboriginal community, that indeed the person had a Badimia ancestry or a traditional association with the claim area.”934 However, here Barker J found “there is a lack of probative evidence of to support a finding of traditional association with the claim area,”935 and:

In drawing inferences, it is understood that, in a proceeding such as this, like any proceeding in this Court not affected by statutory presumptions or other requirements, the Court may only draw reasonable inferences, that is to say inferences reasonably drawn from facts proved in the proceeding.936

The requisite strength of the evidentiary foundations, particularly in relation to inferences leading to a negative determination, was discussed by Black CJ (in the minority) in Yorta Yorta FC. There His Honour commented in a manner which suggests the application of a sliding scale of probabilities, as given the “irreversible consequences for Indigenous people of a finding, that long ago, their ancestors ceased to acknowledge traditional law and observe traditional customs,”937 such a conclusion must be based on “very strong foundations.”938 Further, there is a need to assess evidence beyond “the historical snapshot of adventitious content, which may in any event reveal little or nothing of a process of adaptation and change then taking place. It may well be necessary to have regard to events over a long period if misconceptions about adaptation and change are to be avoided.”939

In relation to how such evidence is assessed, a number of cases adopt common sense and logical touchstones, similar to those in the general law discussed in Chapter 7. Madgwick J in Gale held that “[ejvidence of ‘oral history’, oral traditions, may well have an important role in that process of inference. The worth and limitations of evidence of oral traditions are, in general, matters of some controversy in historiography. ... a judge can do little else but try to proceed on a broad, common sense basis.”940 Similarly, Lindgren J in Wongatha No 9 held that “[t]he proper drawing of inferences depends on the application of logic and human experience to the facts that are proved by admissible evidence.”941

What will fall short of a basis for inference is also consistent with the general law. In Yorta Yorta, Olney J held that “the Court will have regard only to evidence which is relevant, probative and cogent.

933 [2015] FCA 204 at [115] - [117] 934 Ibid, at [313] 935 Ibid [295] 936 Ibid, at [348] 937 (2001) 180 ALR 655 at [63] 938 Ibid, at [85] 939 Ibid, at [59] to [61] and [72] - [74] 940 [2004] FCA 374 at [42] 941 [2007] FCA 31 at [342]

142 | P a g e In particular, pure speculation ... must be disregarded.”942 Similarly, Mortimer J in Dempsey declined to make an inference pressed for by a party on the basis that it would be engaging in speculation.943

In relation to what is appropriately the subject of review on appeal, the Full Federal Court has drawn a clear distinction between facts from which inferences may be based, and the inferences themselves. Wilcox, Sackville and Merkel JJ in De Rose FC considered O’Loughlin J in De Rose erred in drawing an inference that the claimants had failed to maintain a connection with the claim area.944 Their Flonours held that the subject matter of an inference drawn was more readily appellable than the findings of fact on which the inference relied, and that O’Loughlin’s findings:

cannot be regarded as credit-based findings of fact that are entitled to deference on appeal. Rather, they are inferences drawn from other findings of fact and are flawed by the errors and omissions to which we have referred. As a consequence, the question of... the appellants’ connection with the claim area by those laws and customs, requires further consideration.945

3. Gumana Principles Perhaps the most clearly enunciated statement of principle for the drawing of inferences in native title determinations was set out in the judgment of Selway J in Gumana. The "Gumana Principles” provide that “an inference that a tradition or custom has existed at least since the date of settlement,” can be drawn where:

• there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement; and

• this is supported by

• creditable evidence from persons who have observed that custom or tradition; and

• evidence of a general reputation,

that the custom or tradition had “always” been observed; and

• there is an absence of evidence to the contrary.946

Flis Honour also emphasises that this “does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement.”947

The Gumana Principles have since been adopted by numerous cases.948 However, Strelein suggests that this has approach has been diminished by the findings of Mansfield J in Risk and Finn, Sundberg

942 [1998] 1606 FCA at [17] and [21] 943 [2014] FCA 528 at [807], having regard to Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [84] and Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170 944 By according undue weight to a perceived failure by the claimants to discharge their traditional responsibilities for the claim area, as well as an over-emphasis on a lack of physical contact with the claim area. Such undue weight failed to consider how such matters were accommodated by the traditional laws acknowledged and customs observed, and spiritual links with the land - [2003] FCAFC 286 at [315] - [329], 945 Ibid, at [341] 946 [2005] FCA 50 at [201] 947 Ibid. Although at [202] His Honour refers to 1788, so he does not distinguish between sovereignty and first contact. 948 Griffiths v Northern Territory of Australia (2006) 165 FCR 300 at [578]-[580] per Weinberg J; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No. 9) (2007) 238 ALR 1 at [341] per Lindgren J; Sampi v State of Western

143 | P a g e and Mansfield JJ in Bodney regarding the emphasis on assessing connection on a “generation by generation” basis.949 However, such effects may be considered to be mitigated by various findings, including Sundberg J’s decision in Neowarra where His Honour held that the requirement that laws and customs have been passed down from generation to generation was satisfied, on the basis that:

Nearly all witnesses said they had received instruction about the laws and customs from their parents and grandparents. The grandparents of the most senior witnesses would have received comparable instruction in about 1875.950

On the basis of this, and the evidence that current laws and traditions are the same as those existing prior to 1829, His Honour was able to “infer that the grandparents of the senior witnesses received their instruction in the same way as the witnesses had received theirs.”951

Such effects may also be alleviated by the conceptual approach outlined by Bennett J in AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4)952 (Ngarla). Her Honour adopted the Gumana Principles but also emphasised the importance of contemporary evidence that establishes contemporary normative rules, from which she stated the Court is “entitled to draw inferences about the content of the traditional laws and customs at sovereignty” and that “such a normative rule existed at sovereignty.”953 Arguably954 this approach lends itself to the methodologies adopted by Black CJ in the minority in the Yorta Yorta FC, and in Ward, to identifying the content of traditional law and custom in the present and tracing it back in time, as discussed in Part 9 of Chapter 5.

The Gumana Principles and the manner in which they have been adopted in subsequent cases raises a number of issues for further consideration, namely the alignment of these principles with the general law “proof of custom,” and the omnipresent requirement of a lack of evidence to the contrary.

In relation to the first of these issues, Selway J set down a clear statement of principle of aligning of matters of native title proof with customary rights under English common law.054 His Honour noted that the relevant problem “is one that is well known to the common law. There are a number of circumstances where it was necessary at common law to establish proof of custom dating back not just to the 18th century, but to "time immemorial",” such as copyhold and prescription or ancient lost grant.955 His Honour noted a similarity between such matters and evidence to prove Aboriginal custom being the reliance on oral evidence, and that “[i]n practice those difficulties were ameliorated by the readiness of the common law courts to infer from proof of the existence of a current custom that that custom had continued from time immemorial.”956 His Honour noted the relevant rule was often

Australia [2010] FCAFC 26 at [63]-[65] per Mansfield and North JJ; AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [724] per Bennett J; Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132]-[134] per Mortimer J; and Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at [28] per McKerracher J. 949 Strelein (2009a), op cit, at 140 -141 950 [2003] FCA 1402 at [336]. Similarly, see Griffiths v Northern Territory of Australia [2006] FCA 903 at [584] per Weinberg J. 951 Ibid 952 [2012] FCA 1268 953 Ibid, at [724] 954 As discussed in ALRC Connection Report at 223 fn 82 and 83 955 Gumana v Northern Territory of Australia and Others [2005] FCA 50 at [197] 956 ibid, at [198]

144 | P a g e expressed in the negative such as "time whereof there is no memory of man to the contrary"957 (a link to the next issue). His Honour thus held:

There is no obvious reason why the same evidentiary inference is not applicable for the purpose of proving the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom ... Australian cases [post Milirrpum] would seem to have relied upon such inferences.958

Lindgren J described proof of custom as “retrospective continuance” in Wongatha No 9, and added the qualification that for such inferences to be drawn “the shorter the period that has to be covered ... the better.” 959 His Honour explained his approach to drawing such inferences of a pre-sovereignty body of laws and customs involved looking “first for the earliest available evidence of laws and customs as they existed after first contact,” although His Honour conceded that such records may in some cases have been made long after first contact.960 This is discussed further in Part 4 below.

Various judgments have made reference to the Gumana Principles requirement of an absence of evidence to the contrary.961 In Ward, Lee J held (prior to Gumana) that:

Unless there is evidence to the contrary, it may be inferred that when European settlement of the claim area began some sixty years after sovereignty was asserted, the Aboriginal inhabitants then in occupation of that area were connected to the land of the claim area and with the Aboriginal people who occupied the claim area at sovereignty962

In Lake Torrens Overlap Proceedings (No 3)963 (Lake Torrens), Mansfield J held that “[wjhere evidence of Aboriginal presence at sovereignty is unavailable (as is commonly the case), such an inference is more readily drawn where there is a preponderance and weight of available evidence and in the absence of contradictory evidence.”964 Weinberg found in Griffiths v Northern Territory of Australia965 (Griffiths), that a lack of evidence to suggest rituals and ceremonies were suddenly created or radically transformed allowed the drawing of a reasonable inference that “the indigenous people who inhabited the Timber Creek region in about the middle of the nineteenth century, and who

957 ibid, at [199]-[200] 958 [2005] FCA 50 at [201], with reliance on Hammerton v Honey (1876) 24 WR 603 at 604. Followed in Griffiths v Northern Territory of Australia [2006] FCA 903 at [578] - [580] and [642] per Weinberg J, in Bennell v State of Western Australia [2006] FCA 1243 at [457] per Wilcox J; in AB (deceased) on behalf of the Ngarla people v State of Western Australia (No 4) [2012] FCA 1268 at [724] per Bennett J; in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132] per Mortimer J; and in Narrier v State of Western Australia [2016] FCA 1519 at [315] per Mortimer J 959 [2007] FCA 31 at [341], discussed further below in Part 4 960 Ibid. His Honour made reference to the Wigmore on Evidence description of retrospective continuance, which provides that prior existence of an object, condition, quality, or tendency is some indication of its probable continuance at the later period, subject to the chances of intervening circumstances bringing the existence to an end, which may be the subject of evidence to raise a probability of change instead of continuance - Ibid, at [343], with reference to Wigmore on Evidence, 3rd ed, vol 2 061 In addition to those discussed here, examples include Olney J’s judgments in Yarmirr v Northern Territory of Australia (No 2) [1998] FCA 771 at [88] and [98] and Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923 at [66]; RD Nicholson J’s judgment in Daniel v State of Western Australia [2003] FCA 666 at [428]; and Lindgren J’s judgment in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [347], 962 (1998) 159 ALR 483 at 514 963 [2016] FCA 899 964 Ibid, at [95] 965 [2006] FCA 903

145 | P a g e acknowledged and observed essentially the same laws and customs as do the present claimants, did not simply invent them.”966

The “preponderance and weight of the available evidence,967 and the absence of any contradictory evidence” in Alyawarr, enabled Mansfield J to draw a variety of inferences, regarding:

• The claimant group’s descent from the indigenous inhabitants of the claim area as at first European contact and at the acquisition of sovereignty. • Such people having inhabited the claim area continuously since European contact and presence upon and occupation of the claim area at the date of sovereignty in similar manner. • Aspects of traditional law and traditional custom observed by ethnographic works also operating at and before sovereignty, which is particularly likely “when one considers the intricacy of the system and the almost complete absence of European contact prior to 1871 ,”968

Absence of evidence to the contrary also has a role to play in consent determinations, where the Court will still need to satisfy itself of the veracity of inferences relied on by the parties given the judgment in rem nature of native title determinations. For example, in Lander v State of South Australia,969 Mansfield J agreed with the State that:

the material supports the inference that the pre-sovereignty normative society has continued to exist throughout the period since sovereignty, and ... there is nothing apparent in the evidence to suggest the inference should not be made that the society today ... acknowledges and observes a body of laws and customs which is substantially the same normative system as that which existed at sovereignty.970

The case law provides a number of examples where the Court had to consider situations where there was evidence to the contrary. In Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia,971 Mansfield J held he could infer that the laws and customs of Barngarla people documented at or shortly after the time of early European contact in the late 1830s, existed at the time of sovereignty, absent evidence to the contrary.972 However, His Honour noted, “[i]n this case, there is a suggestion of evidence existing to the contrary,” which required assessment, namely a theory of migration supported by ethnographic evidence and the evidence of an expert anthropologist who himself suggested it constituted only “speculation,” albeit speculation “informed by parallel experiences elsewhere.”973 Based on such matters, Mansfield J accepted on the balance of probabilities, the inference should be drawn.974 His Honour accepted the submissions of the State and the applicant that it was permissible to infer the content of the Barngarla land tenure system (and the

966 ibid, at [577] 967 Namely unchallenged expert opinion, archaeological, ethnographic and historical material, and contemporary evidence. 968 [2004] FCA 472 at [110]. See also [101] and [108]. His Honour noted that the Northern Territory accepted that in this instance the Court may well be able to draw many of these inferences, at [74 969 [2012] FCA 427 970 Ibid, at [48]. Similarly, see Lovett on behalf of the Gunditjmara People v State of Victoria (2007) FCA 474 971 [2015] FCA 9 972 Ibid, at [92] 973 Ibid, at [703] to [708] 974 Ibid, at [709]

146 | P a g e use offish traps) from the opinions provided by experts irrespective of the fact that there was no direct evidence detailing the content of that system.975

However, there are also examples of the Court applying this test and finding there is sufficient evidence to the contrary to negate the inference. In Badimia, Barker J accepted the submission of the State that “it is one thing to infer that a named apical ancestor is a Badimia person in the absence of documentary material and another to do so in the face of positive evidence to the contrary,” and that the available documentary material and the Aboriginal evidence supported a finding of a lack of association with the claim area at sovereignty.”976 Similarly Sackville J in Jango held the lack of consistency of indigenous evidence in relation to a particular set of laws and customs diminished the force of any inference that might be drawn that “the laws and customs described by the witness have remained substantially intact since sovereignty.”977

Thus a lack of contrary evidence is an important factor for proof of connection. However, as is apparent from the foundational principles set out in Part 2, and the bases on which claimants were unsuccessful in Part 8, this alone is not sufficient and supporting creditable evidence of observation or reputation (consistent with the Gumana Principles) is still required for a claim to succeed.

4. Assessments at the relevant points in time Much of what occupies the Court’s inferential reasoning (including in the application of the Gumana Principles) is the assessment of the traditional law and custom, and normative society, status quo at various points in time. These times are crucially at the acquisition of sovereignty and maintained to the present day but also by virtue of the nature of the evidence at times when European contact was sufficiently advanced to have created an archive and when matters are reasonably within living memory (directly or passed down) of senior members of a claim group.

Due to the evidentiary issues involved, the relevant State or Territory parties have, on occasion, been willing to concede that indigenous people occupied the claim area and practiced traditional laws and customs at sovereignty, based on what is known from earliest contact. A concession of this nature gives the Court the utility of only having to have regard to the situation at the later date.978

Absent such concessions, the Court must then consider what inferences may be drawn in relation to the period between sovereignty and first contact with Europeans or the relayed experiences of living witnesses.979 Occupation at and after sovereignty has been the subject of inferential reasoning in a number of cases. In Yorta Yorta, Olney J was satisfied that despite a lack of direct evidence, it was possible to infer occupation of the claim area at sovereignty based on settler observations and archaeological evidence. His Honour held the “inference that indigenous people occupied the claim area in and prior to 1788 is compelling,” based upon:

975 Ibid, at [126] and [197] 976 [2015] FCA 204 at [216] 977 [2006] FCA 318 at [504] 978 Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 at [28] per Jessup J; Narrier v State of Western Australia [2016] FCA 1519 at [10] per Mortimer J 979 e.g. in Members of the Yorta Yorta Aboriginal Community y State of Victoria [1998] FCA 1606 at [106]

147 | P a g e The early explorers recorded making contact with Aboriginals in the general vicinity of the claim area as did the first settlers. The area is clearly well watered and fertile. There is undisputed evidence in the form of burial sites, oven mounds and shell middens, particularly along and near to the banks of rivers, which testify to the presence of people within the claim area over a considerable period.980

However, His Honour held that there are limits on the extent to which such inferences can apply to ongoing connection from sovereignty, with mere presence being insufficient proof of ongoing traditional rights and interests or the geographical limits of native title holdings.981

Similarly in Wongatha No 9, Lindgren J identified obstacles to the drawing of an inference of occupation of the claim area at sovereignty by ancestors of the claim group,982 notwithstanding His Honour’s willingness to infer indigenous occupation at sovereignty from observations by early explorers of indigenous people within the claim area.983 Such obstacles included evidence of migration or ‘population shift’ from after European settlement, positive evidence that many of the ancestors of the claimants came from areas outside of the claim area, and an absence of evidence of long term association and stability of indigenous groupings with particular areas.984

However, inferences in relation to these matters have been able to be drawn in various judgments. In Rubibi Community v State of Western Australia985 (Rubibi), Merkel J inferred prior use of an Aboriginal law ground throughout the 19th century had since continued, based on evidence that the “dislocation of Aboriginal communities only occurred after the Broome area was settled by non- Aborigines late in the 19th century.”986 In Daniel, RD Nicholson J overcame a lack of documentary or other evidence before the Court, by relying on expert evidence to infer that Aboriginal people who occupied the claim area at European settlement (approximately 30 years after sovereignty) “were connected to the land of the claim area and with the Aboriginal peoples who occupied those areas at sovereignty.”987 Cooper J held in Lardil Peoples v State of Queensland988 (Lardil) that evidence from older witnesses who had had contact with Lardil peoples who lived according to traditional law and custom prior to 1914, together with expert evidence:

satisfies me that I might properly infer that the arrangements which I find existed as to the occupation and use of the land and adjacent waters in 1914 were the same, or derivative from, those arrangements under traditional laws acknowledged or traditional customs observed by the original Lardil peoples at the time of sovereignty989

980 Ibid, at [25] 981 Ibid, at [52]. Followed by Madgwick J in Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [120]. Contrast the finding of Mortimer J in Narrier v State of Western Australia [2016] FCA 1519 at [320] who held that habitual residence of ancestors in the claim area or not does not affect the ability to draw favourable inferences. 982 [2007] FCA 31 at [350] 983 Ibid, at [347] 984 Ibid, at [347] and [348] 985 [2001] FCA 607 986 Ibid, at [79] 987 [2003] FCA 666 at [428] and [429] 988 [2004] FCA 298 9891 bid at [102]

148 | P a g e Two cases in particular, namely Dowsett J’s judgment in Gudjala People (No 2) v Native Title Registrar*90 (Gudjala) and Lindgren J’s judgment in Wongatha No 9 provide useful statements of principle in relation to the drawing of inferences in relation to the observance of traditional laws and customs and existence of a normative society at the relevant points in time. Lindgren J identified the following two inferences the Court was being asked to draw in Wongatha No 9:

• 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).

• An inference that the activities and behaviour are attributable to pre-sovereignty and continuing laws and customs (an inference of attribution).990991

His Honour found that observable conduct such as “[ajvoidance of the use of the names of deceased people, in-law avoidance, [and] not marrying people within certain skin groups”992 could found the basis for such inferences, whereas other conduct, such as hunting, is equivocal in relation to the potential to attribute its exercise as a traditional right.993 Lindgren J quotes Gleeson J in Mason who similarly referred to fishing as “an activity which is so natural to people who occupy, or visit, coastal regions, that some care needs to be exercised” in assessing such activities are the subject of traditional laws and customs merely because they have been observed.994

Lindgren J noted that considerations relevant to an inference that presence and activity observed at and since first contact is a continuation of pre-sovereignty presence and activity, include whether Aboriginal people generally or a specific group were observed, whether the Aboriginal people observed were transient or more settled in the claim area, and what conclusions may be drawn from observations at one place about presence elsewhere.995 In addition, His Honour stated that “[i]n relation to a practice or activity, the permissible drawing of inferences requires careful consideration of the practice or activity, the frequency or rarity of its occurrence as observed, the circumstances of earlier times in so far as they are known, and the general probabilities.”996 His Honour also noted that “the semi-nomadic nature of indigenous life in the Western Desert until the migration and sedentarisation that followed European settlement” creates additional complications for inferential reasoning.997

In Gudjala, Dowsett J held that “[i]n some cases it will be possible to identify a group’s continuous post-sovereignty history in such detail that one can infer that it must have existed at sovereignty simply because it clearly existed shortly thereafter and has continued since.” Such circumstances might allow an inference that laws and customs were unaffected by the assertion of sovereignty such that they were “probably much the same as the pre-sovereignty laws and customs.”998 Such

990 [2009] FCA 1572 991 [2007] FCA 31 at [342] 992 Ibid 993 Ibid, at [330] 994 (1994) 34 NSWLR 572 at 574 995 [2007] FCA 31 at [344] 996 Ibid, at [345] 9971 bid, at [1297] 998 [2009] FCA 1572 at [30]

149 | P a g e circumstances can be assessed where “the continuous history of the claim group since the assertion of British sovereignty is well-known,” for which His Honour gave the Torres Strait as an example.999 His Honour stated that in these circumstances, “[t]he evidence of actual events will demonstrate continuity” between the pre-European contact society and the claim group, without the need to resort “to a close examination of the societies and their laws and customs.”1000

However, Dowsett J also held that where there is an “absence of any recorded history of the society and the way in which it has continued since the earlier “snapshot” of the society,” an alternate approach is to establish continuity by inference through “examination of those societies and their laws and customs at two or more points of time.”1001 In those circumstances, if sufficient is known of circumstances at or around first European contact “to permit an inference that the claim group is a modern manifestation of a pre-sovereignty society, and that its laws and customs have been derived from that earlier society ... Such a case will involve, at some point, a comparison of the earlier and later societies and their laws and customs.”1002

His Honour proceeds to acknowledge that most cases will involve elements of both approaches, and that applicants may succeed in native title claims where there is evidence of:

• the existence of a society at or about European contact and its acknowledgement and observance of laws and customs, followed by continuity, “the first, by available inference and the second, directly;” and

• a pre-sovereignty society and its laws and customs, with genealogical links to the claim group, and similar laws and customs, which “may justify an inference of continuity.”1003

Elsewhere His Honour found that little or no contact between indigenous and non-indigenous people between sovereignty and a later date could found an inference there was “little change in the relevant indigenous society until more intense contact occurred.”1004 1005

The Full Federal Court considered issues relevant to the drawing of such inferences, in Sampi on behalf of the Bardi and Jawi People v State of Western Australia''005 (Sampi FC). In that case, Mansfield and North JJ held that “the constitutional status and elaborate nature of the rules in question make it improbable that the system arose in the relatively short period between sovereignty and the time of the witnesses’ ‘old people’.”1006 Thus the Court held the claimant group had been united by their acknowledgement of a common set of laws and observance of a common set of customs since the time of sovereignty.1007 To do so, the Full Court relied on direct evidence of subsidiary matters which assist in the drawing of inferences in support of the relevant society and its normative system of laws and customs, such as “proof of the existence of songs about the sea

999 Ibid 1000 Ibid, at [32] 1001 Ibid, at [31] and [32] 1002 Ibid, at [31] 1003 Ibid, at [33] 1004 Dowsett J in State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186 at [2] 1005 [2010] FCAFC 26 1006 ibid, at [65] 1007 Ibid [64]-[66]

150 | P a g e [which] is capable of showing that there were rules about the use of the sea even though the proof of the songs themselves is not proof of the law or custom.”1008

5. Genealogical evidence The Courts have rejected a narrow or technical approach to genealogical evidence regarding descent from the sovereignty era occupants of a claim area.1009 Genealogical issues were central in the rejection of an unreasonable and unrealistic approach by Kirby P in Mason, who approached such evidence on the basis of assessing the probability of intervening events that would break the relevant biological links.1010

Olney J recognised in Yarmirr, “the proof of genealogical connections to ancestors living at or prior to European settlement cannot be proved by reference to official records.”1011 His Honour held that the “preponderance and weight” of the historical records of indigenous inhabitation both prior and subsequent to sovereignty and the ability of the claimants to trace their genealogy for four generations (i.e. for around 100 years prior to 1946), together with a lack of evidence to the contrary, enabled him to infer the relevant genealogical links back to sovereignty and inhabitation of the claim area by such people continuously ever since.1012

Lee J in Ward was satisfied to rely on “a broad spread of links with the ancestors referred to ... among the representative claimants”1013 shown by the genealogies, and so found “that an inference may be drawn that known ancestors were connected with the community in occupation at the time of sovereignty and with members of the present community.”1014

Merkel J noted in Rubibi, the difficulties facing genealogical evidence “arising as a result of the absence or generality of historical records and the extent to which reliance was necessarily placed on hearsay in constructing them.”1015 His Honour relied on the oral and affidavit corroboration of the genealogical evidence by the claimant witnesses, and rejected the submissions of the State that the genealogical evidence was inherently unreliable.1016 His Honour was “satisfied that the genealogies, corroborated by the evidence of the witnesses, demonstrate that on the balance of probabilities the Rubibi claimant group includes ancestral descendants of the apical Yawuru ancestors.”1017

1008 ibid, at [77], Their Honours were willing to draw such inferences notwithstanding the regard had by French J (as His Honour then was) in the trial of the matter ([2005] FCA 777) to a “constellation of factors” (including the existence of distinct languages, the separate self-referents of Bardi and Jawi, and separate territories) to the contrary - [2010] FCAFC 26 at [67], with reference to Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 at [369] 1009 Commonwealth v Yarmirr [1999] FCA 1668 at [360] per Merkel J 1010 (1994) 34 NSWLR 572 at 588 1011 [1998] FCA 771 at [21] His Honour noted that the then non-application of the rules of evidence in the Native Title Act 1993 (Cth) and exceptions to the Hearsay Rule in the Evidence Act 1995 (Cth) enabled regard to be had to evidence from witnesses of relationships and traditional practices passed down through oral history and to ethnographic and other archival observations. 1012 Ibid, at [88] 1013 (1998) 159 ALR 483 at 533 1014 Ibid, at 40-41, with regard to uncontradicted genealogies prepared by anthropologists based on ethnographic material and claim group statements, and consistent oral evidence. Upheld by the Full Federal Court in The State of Western Australia v Ward [2000] FCA 191 at [232] and [235] 1015 [2001] FCA 607 at [157] 1016 Ibid, at [158] 1017 Ibid, at [159]

151 | P a g e In Griffiths, Weinberg overcame the evidentiary difficulties associated with “cases where the need to go back thirty or forty years beyond the earliest extant genealogy would render the process too speculative to permit an inference of continuity or connection to be drawn,” by refusing to turn “a blind eye to ... historical realities.” These included knowledge of indigenous occupation dating back to the earliest explorer, ethnographic similarities with other parts of Australia and documented ritual practices from the late-nineteenth century which were similar to those recorded prior to European settlement elsewhere.1018

In Aplin on behalf of the Waanyi Peoples v State of Queensland^9 (Waanyi), Dowsett J drew inferences in relation to membership of a community from self-identification and recognition and acceptance by neighbours, as well as geographical factors such as birth or residence that whilst, not direct evidence, “may provide a basis for inferences as to affiliation.”1020 His Honour inferred such matters as “[i]t seems unlikely that in a relatively small community, one Waanyi family would have held views which differed substantially from those held by other Waanyi families in the area.”1021

However, a lack of evidence of ancestral links can remain a challenge for native title claimants, as shown in Yorta Yorta. Olney J was only satisfied that two of the 18 ancestors referred to in the claim were descended from the indigenous inhabitants of the claim area at the time of sovereignty, and accordingly refused to consider any areas of the claim other than those occupied by those two ancestors and declined to draw favourable inferences in the face of contrary genealogical evidence.1022 Similarly, in Bodneythe Full Court of Finn, Sundberg and Mansfield JJ were critical of Wilcox J’s reliance on a “statistical probability” to draw inferences of lines of descent from people living in the Perth Metropolitan Area at sovereignty, whereby His Honour held:

we know some thousands of Aborigines lived in the Perth Metropolitan Area at date of sovereignty. In the ordinary course, those people would now have hundreds of thousands of living descendants. Nineteenth century families (Aboriginal and non-Aboriginal) were usually large. ...but it seems most unlikely that the wider Noongar community contains no descendant of any of them.™23

On appeal their Honours held that such an inference would require “proof of continuing connection to that area” by tracking “the continuing operation and vitality of those descent rules as they related to that area.”1024

6. Geographic boundaries The nature of native title holdings are such that their geographic boundaries raises various evidentiary difficulties, which in turn may need to be the subject of inference (some of which were discussed in

1018 [2006] FCA 903 at [583] 1019 [2010] FCA 625 1020 Ibid, at [229], [232]. [233] and [239] 1021 Ibid, at [232] 1022 [1998] FCA 1606 at [88] 1023 [2006] FCA 1243 at [799] 1024 [2008] FCAFC 63, at [189]

152 | P a g e Part 6 of Chapter 5). These difficulties were acknowledged by Brennan J (as His Honour then was) in Mabo as follows: There may be difficulties of proof of boundaries or of membership of the community or of representatives of the community which was in exclusive possession, but those difficulties afford no reason for denying the existence of a proprietary community title capable of recognition by the common law.1025

As a consequence, as RD Nicholson J held in Daniels, “[t]he problems of proof dictate that boundaries need not be proven precisely or with absolute accuracy.”1026

In Yarmirr, boundaries of the claim area were accepted notwithstanding the absence of direct evidence, and based on “reasonable inferences” from the evidence of use. 1027 Olney J noted that whilst the northern boundary of the claim area was “no doubt fixed quite arbitrarily,” consistency with the evidence and an absence of contradictory evidence or challenges to the credit of witnesses, allowed the inference to be drawn that the boundary was appropriate.1028

Similarly in Ward, Lee J referred to Brennan J’s judgment in Mabo and held that “exigencies of the Aboriginal way of life neither required, nor facilitated, establishment of precise boundaries for territories occupied by Aboriginal societies.”1029 This approach was supported on appeal in State of Western Australia v Ward™30 (Ward FC) by Beaumont and on Doussa JJ, who held the fact that the particular area in question was “well inside the determination area” and having “regard to Aboriginal activities in the surrounding areas,” this could support a finding of connection with the relevant area.1031

In Bodney, Finn, Sundberg and Mansfield JJ noted a propensity by the Court “to infer such connection as was practicable with” land or waters that are inaccessible or for which there is no evidence of use “from Aboriginal activities in the surrounding areas which were supportive of a connection to the general area within which those apparently unused or inaccessible areas were located.”1032

Barker J has made two significant findings in relation to such matters. Weighing of all of the evidence was the basis for His Honour’s judgment in Banjima, to resolve boundaries in “border or transitional areas where people were multilingual and “tribal” appellations can confuse, rather than help, the analysis.” 1033 The Court considered whether inferences could be drawn from the ethnographic and anthropological materials, but Barker J preferred on balance the evidence of the Banjima witnesses over these equivocal and uncompelling records.1034 His Honour thus held that the disputed area “was an area in respect of which the evidence shows that Banjima people at the time of contact with British

1025 (1992) 175 CLR 1 at 51-52 1026 [2003] FCA 666 at [113], with reference to Olney J’s judgment in Yarmirr v Northern Territory of Australia (No 2) (1998) 82 FCR 533 at [97]-[98] and State of Western Australia v Ward [2000] FCA 191 per Beaumont and von Doussa JJ at [202] 1027 (1998) 156 ALR 370, [97]-[98] 1028 Ibid, at [98] 1029 (1998) 159 ALR 483 at 504 1030 [2000] FCA 191 1031 Ibid, at [262] 1032 [2008] FCAFC 63 at [175] 1033 [2013] FCA 868 at [295] and [296] 1034 Ibid, at [296]

153 | P a g e settlers, and by inference at sovereignty, had native title rights and interests pursuant to their laws and customs.”1035

In Badimia, Barker J took a harder line on inference as to geographic boundaries. His Honour noted the inconsistencies in the evidence presented by individual witnesses suggesting that each had sourced their knowledge from differing sources, which suggested “no real consensus about the metes and bound of traditional Badimia country” and an absence of an “accepted body of Badimia knowledge about boundaries.”1036 Such problems were compounded by only parts of the claim area matching the ethnographic data presented.1037 His Honour concluded he did not consider that the direct evidence presented by the claimant witnesses was sufficient “to infer, on the balance of probabilities, that the Badimia boundaries at sovereignty included the whole of the claim area,”1038 and that “it would be speculating if I were to find that the whole of the claim area is within traditional Badimia country.”1039 1040

The Supreme Court of Canada has taken similar approach to defining boundaries. McEachern CJ in Delgamuukw v British Columbia™*0 was prepared to make "’substantial and appropriate discounts for the difficult task the plaintiffs have undertaken and due allowances for human frailty, faulty memories, imperfect communication, erroneous assumption, incorrect inferences and other error inducing processes” in this regard, noting also that the Court must “do the best [it] can” where “evidence and inferences do not furnish a completely satisfactory answer.”1041 Similar decisions have been made in US jurisdictions.1042

7. Expert evidence The extent and conduct of inferential reasoning by expert witnesses has been the subject of significant native title case law. Whilst inference and extrapolation by experts has been recognised as a fundamental component of the relevant methods of experts,1043 the ultimate inferences are to be drawn by the Court. In the course of the trial in Ward, Lee J reinforced the role of the expert witness vis-a-vis the role of the judge, in that the opinion of the expert witness is “no more than the highlighting of an available inference that may [be] drawn from ... historical material that has been gathered. Whether such an inference is indeed able to [be] drawn is a matter for me after I determine the facts.”1044

These respective roles give rise to the need to ensure that expert evidence sufficiently allows the Court to critique the manner in which the expert arrived at his or her conclusion, particularly having regard to the validity of the premises from which the expert infers. This is because, as Sundberg J

1035 Ibid, at [316] 1036 [2015] FCA 204 at [202] 1037 Ibid 1038 Ibid, at [199], [205] and [206] 1039 Ibid, at [207] 1040 (1991) 79 DLR (4th) 185 1041 Ibid, at 507, 516, 523, 520 1042 Snake or Piute Indians v United States 112 F Supp 543, 522 (1953) (Ct Cl USA); Upper Chehalis Tribe v United States 155 FSupp 226, 228-229(1957) 1043 Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [565], per Jagot J 1044 Quoted in Choo in Kirkby and Coleborne, op cit, at 272

154 | P a g e held in Neowarra, “the weight to be accorded an opinion or conclusion that is founded on a fact that is not established by admissible evidence may thereby be reduced.”1045 Similarly in Risk, Mansfield J emphasised the need for transparency in the process of the expert’s reasoning, such that factual premises are readily identified in expert evidence to facilitate the ability of the legal representatives (and by extension, the judge) to address them.1046 1047This is1048 because:

‘facts’ themselves have varying degrees of primacy or subjectiveness. ...In the realm of expert evidence, the primary data upon which an opinion is based may comprise a mixture of primary and more complex facts. The opinion may then be further based upon an interpretation ... [and] an exercise of judgment, sometimes fine judgment, by the person concerned.™47

For these reasons, like the general law discussed in Chapter 7, the application of the Basis Rule and associated issues have been considered in native title determinations. In this regard, Sundberg J held in Neowarra, that:

While the legislation does not incorporate a "basis rule, ” an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the court to determine whether the opinion is wholly or substantially based on the expert's specialised knowledge which in turn is based on training, study or experience.™48

Experts have been criticised in the native title process for their failure to follow sound inferential techniques and for a lack of transparency of how this was carried out. Lindgren J in Wongatha No 7 was critical of an expert report that contained “undifferentiated combinations of speculation, summary description of facts, opinion (including opinion beyond the witness’ field of specialised knowledge), hearsay, unsourced assertion and sweeping generalisation.”1049 In Jango, Sackville J similarly criticised an expert anthropological report for its failure to clearly expose the reasoning leading to the opinions arrived at by the authors” and to “distinguish between the facts upon which opinions are presumably based and the opinions themselves,” such that the “basis on which the authors have reached particular conclusions is often either unstated or unclear.”1050 His Honour formed the view that one anthropological expert “had not been limited to that of a wholly objective expert observer and commentator,”1051 whose evidence was therefore worthy only of varying levels of acceptance.1052 Similarly in Waanyi,™53 Dowsett J held that the views of an anthropological expert witness were “little more than a theory.”1054

1045 [2003] FCA 1399 at [39] 1046 [2006] FCA 404 at [468] - [470] 1047 Ibid. Similarly, see Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [433] per Lindgren J 1048 [2003] FCA 1399 at [23], consistent with RD Nicholson J in Daniels v State of Western Australia [2000] FCA 858 at [30] and Sackville J in Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 at [54] and [55] 1049 [2003] FCA 893 at [28] 1050 [2004] FCA 1004 at [11] 1051 Ibid, at [326] 1052 Ibid, at [338] 1053 [2010] FCA 625 1054 Ibid, at [122]

155 | P a g e Experts have also been criticised for alleged bias. In Gale, Madgwick J described the relevant expert as having “not always displayed the rigours of inference and examination to be expected” and having “unjustifiably turned speculations into inference as to possible versions of events that have attractions for members of the claimant group.”1055 Similarly in Risk, historian Dr Wells’ methodology sought to address the deficiencies of the historical record through reading it “against the grain.”1056 Whilst the Court found Dr Wells was not biased, she “was not a dispassionate witness” as she “clearly firmly believed in the reliability of the views she had expressed, and was anxious to persuade as to their advocacy.”1057 Mansfield J held that the methodology adopted by Dr Wells was, in a number of instances, not persuasive and was to be regarded with “some circumspection,”1058 because “she had on occasions inferred a background or context to certain historical materials to understand them as consistent with her view.”1059

However, there is a fine line involved in assessments of bias, as indicated in Sampi v State of Western Australia™60 where French J acknowledged that expert reports containing “argumentative or taxonomical conclusions or inferences relevant to the claimed determination of native title” are appropriate (but are then for the Court to evaluate). This is in contrast to the unacceptable situation where expert opinion evidence becomes advocacy for a particular outcome.1061

More recently, and consistent with matters the subject of Chapter 4, Mortimer J held in Narrier that the expert anthropologist for the State’s approach was “too document-based, and too literal,” and treated “sources he worked with as having some absolute authority, without in my opinion making appropriate allowance for the time and context in which they were produced or recognising that they are only part of the picture.”1062 Her Honour further found that the expert was “too ready to draw inferences from what was not in the material, which again stemmed, in my opinion, from his tendency to see these sources as absolutely authoritative.”1063

8. Inferences of failure to maintain connection The case law gives a useful insight into the importance of positive evidence to support inferential reasoning, in contrast to any suggestion that in light of the evidentiary difficulties faced by applicants, absence of evidence to the contrary might be sufficient. What is apparent, including from recent determinations, is the imperative that positive evidence lends itself to the inference of continuity of a normative society if a native title claim is to succeed.

For example, Madgwick J in Gale noted the complete lack of evidence in relation to the content of native title rights and interests prior to sovereignty,1064 and of any traditional law and customs

1055 [2004] FCA 374 at [132], See also Lindgren J’s judgment in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [413] - [430] 1056 [2006] FCA 404 at [121] to [123] 1057 Ibid, at [132] 1058 Ibid, at [133], [137] and [138] 1059 Ibid, at [133] 1060 [2005] FCA 777 1061 Ibid, at [792] and [793] 1062 [2016] FCA 1519 at [289] 1063 Ibid 1064 [2004] FCA 374 at [120]

156 | P a g e foundations for regrouping by the original Aboriginal inhabitants of the greater Sydney area in response to periodic necessities.1065 On the basis of a lacunae of evidence, His Honour held that knowledge of pre-sovereignty norms of relations to and in connection with land inherent in traditional laws and customs has been irretrievably lost.1066 His Honour also held “the inference of immense change causative of virtually complete loss of a language confirms every other indicator that the changes since sovereignty have amounted to a complete rupture with traditional ways, not their live maintenance through adaptation.”1067 1068Thus Madgwick J held:

the inference does not appear warranted that the rise of any felt primary identity as Darug people in the 19th and 20th centuries among the claimants and their forebears is of a kind with traditional pre-sovereignty regroupings. ...the scale and intensity of the post-sovereignty re-arrangements ... [are] of a kind quite different from what occurred before sovereignty, so as to indicate ... a break with anything previously known.''068

Madgwick J expressly reached this conclusion having regard to the “radically different context” of ouster of Aboriginal people from the great bulk of the lands, inter-marriage with non-Aboriginal people, and cessation or fundamental change to traditional economic, political, social and spiritual ways of living.1069

Jagot J in Wyman held that whilst the anthropological evidence supports the inference that the Karingbal People1070 had traditional laws and customs that involved differential rights and responsibilities for different areas based on familial and environmental clusters, this inference was ultimately to the detriment of those claimants given that aspect of traditional laws and customs had disappeared.1071 1072Her Honour held that the knowledge of the Arcadia Valley held by the Karingbal was not:

capable of supporting an inference of traditional laws and customs under which there are rights and interests in relation to the land when the weight of the evidence indicates, at best, the continuation of so few fragments of traditional laws and customs in such attenuated or radically revised forms.m2

Her Honour did so on the basis the evidence1073 “does not support the inference that the observance and acknowledgment of the pre-sovereignty laws and customs of the Karingbal people has continued

1065 Ibid, at [122] and [123] 1066 Ibid, at [126] 1067 Ibid, at [111] 1068 Ibid, at [124] 1069 Ibid. Contrast State of Western Australia v Ward [2000] FCA 191 at [241] where Beaumont and von Doussa JJ held that an inference that Aboriginal presence became impractical in an area because of concentrated settler activity on its own does not give rise to a finding that “surviving members of the indigenous population have not substantially maintained their connection with the land.” 1070 The reference to the Karingbal People appears in Her Honour’s judgment as a reference to the “BRP” or “Brown River People.” However, given Her Honour’s findings that the true Karingbal People were only the descendants of the apical ancestors the subject of the BRP claim, these people are appropriately referred to (as Her Honour subsequently did in her judgment) as the Karingbal People. 1071 [2013] FCA 1229 at [555] 1072 Ibid, at [619], Contrast this and Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 15 at [153] with the Full Court’s treatment of “subsidiary matters” in Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26 at [77] 1073 Statements of witnesses regarding boundaries and language, expert reports describing the impact of European expansion, and reports of anthropologists and archaeologists which sort to establish the boundaries of Karingbal area.

157 | Page substantially uninterrupted since sovereignty.”1074 Her Honour similarly found that the evidence1075 supported the inference that the Bidjara claimants had lost their pre-sovereignty traditional laws and customs, given there was “no evidence of any continued acknowledgment or observance of these aspects of the law and custom ... given ... at the preservation of evidence hearing in 2001.”1076

The importance of the need to acknowledge and observe, not merely know about, traditional laws and customs to support an inference of a normative society was emphasised by Jessup J in Sandy on behalf of the Yugara People v State of Queensland (No 3J.1077 His Honour held that members of the Turrbal claim group being told about traditional customs, combining visits to the claim area to attend places of traditional interest as well as other reasons, and witnessing and participating in ceremonies and rituals “is not enough” to require the court to infer the existence of a normative society.1078 His Honour also held that “the only indications of an aboriginal presence in the Brisbane area in the late nineteenth century were isolated ones from which no inference of the existence, much less of the vitality, of a society in ... could safely be drawn.”1079 His Honour noted that the evidence from both applicant groups of continuity of acknowledgement of laws and customs was “unsystematic and fragmentary,”1080 and certain knowledge did not “bespeak the existence of a normative system of laws and customs.”1081 1082In relation to the challenges faced by the claimants, Jessup J held that:

Even allowing for a degree of generosity in recognition of the difficulties associated with proving events which occurred long before the lifetime of any witness, and in relation to which even anthropologists and historians need to proceed by way of inference, the factual basis of the Turrbal case as outlined above does not, in important respects, rise above surmise. ... [and certain claims are] no more than a matter of conjecture.'1062

The Courts ability to draw the necessary inferences was also diminished by a dearth of relevant evidence over “the better part of a century,”1083 and by the fact that “at the point of bringing forward concrete evidence from which, even arguably, continuity might be inferred, everything occurred” outside the claim area.1084

Similarly, in Badimia Barker J noted the difficulty confronting the applicants was that “the data, both historical and more contemporary, of the ethnographers, and the claimant evidence is limited in the case of the former, and largely speculative, in the case of the latter.”1085 His Honour found that there was “little evidence in effect to piece together the evolution of a sovereignty rule through to the current rule, even by inference. It is difficult to conclude, on the facts presented in this case, that the

1074 Ibid, at [621] 1075 Preserved evidence regarding boundaries and culture, witness statements regarding boundaries, traditions, customs and laws and stories, expert anthropological and archaeological reports, and in relation to language and the impact of European expansion. 1076 Ibid, at [628] 1077 [2015] FCA 15. Upheld on appeal in Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108 1078 Ibid, at [129] 1079 Ibid, at [80] 1080 Ibid, at [81] 1081 Ibid, at [152] and [153], in relation to songs and “stories, beliefs, fears, taboos, habits and activities." 1082 Ibid, at [84] 1083 Ibid 1084 Ibid, at [154] 1085 [2015] FCA 204 at [423]

158 | P a g e contemporary rule as to who can speak for country is an acceptable adaptation of the inferred sovereignty rule.”1086 Thus, “[b]y inference, the estate/local group organisation, likely to have existed at sovereignty, collapsed.”1087 Barker J held:

Ethnographic evidence of such a functioning group, by law and custom, is, on the whole, missing, and that of the claimants alone does not adequately or sufficiently supply it. ... Without primary evidence it is not open to the Court to infer a community or society of Badimia that has existed through the generations and which has maintained a connection with the claim area by traditional Badimia laws and customs.1088

Instead, His Honour inferred that at some point... probably in the course of the 20th century, a “new” society of people who identified, and identify, as Badimia for explicable historical reasons became responsible for maintaining a connection with what was considered to be Badimia country.1089

9. Challenges for overlapping claims Overlapping and competing native title claims can pose particular challenges to the Court’s ability to draw inferences favourable to the existence of native title. An example of where the Courts have been able to overcome such challenges is Ngarla, in which Bennett J held that the Ngarla People held native title rights in an area of overlapping claims.1090 Her Honour held that the competing Warrarn claim to the overlap area was not made out,1091 including because, notwithstanding a Court may draw inferences from observable patterns of behaviour, the right or interest to behave in the manner observed must have normative content. Her Honour took into account that the Warrarn’s residence on a pastoral lease within the overlap area “is recent and much of that behaviour commenced with their purchase of the pastoral lease.”1092 Further, Her Honour held:

The Warrarn need to demonstrate that their practices and rights are part of the normative system of traditional law and customs. The observable behaviour1093... does not alone demonstrate the rights and interests that are claimed by the Warrarn. Indeed, many of the observable behaviours are highly specific and would not permit a broader inference to be drawn in respect of the Warrarn and Ngarla generally.1094

Barker J in Banjima approached the resolution of competing interests in “border or transitional areas where people were multilingual and “tribal” appellations can confuse, rather than help, the analysis,”1095 through weighing the evidence as a whole. The Court considered whether inferences

1086 Ibid, at [425] 1087 Ibid, at [430] 1088 Ibid, at [482] 1089 Ibid, at [432] 1090 [2012] FCA 1268 at [936] to [938] 1091 Ibid, at [941] 1092 Ibid, at [283] 1093 That young people were put through the Law, the right to hunt and get boomerangs, cutting trees in accordance with traditional law and custom, fashioning sacred objects for use in ceremonies and obtaining bush tucker from the country. 1094 Ibid, at [314], Merkel J’s judgment in Rubibi Community v State of Western Australia (No 6) [2005] FCA 1025 at [331]; [2006] FCA 82 at [94] is another example of where the Court has been able to overcome such challenges and make a favourable finding in relation to the applicants. 1095 [2013] FCA 868 at [295] and [296]

159 | P a g e could be drawn from the ethnographic and anthropological materials, but Barker J preferred on balance the evidence of the Banjima witnesses over these equivocal and uncompelling records.1096 His Honour thus held that the disputed area “was an area in respect of which the evidence shows that Banjima people at the time of contact with British settlers, and by inference at sovereignty, had native title rights and interests pursuant to their laws and customs.”1097

However, in Lake Torrens, Mansfield J held that whilst “it is not uncommonly the case that what is clearly established by evidence may support an inference, either by physical or by temporal proximity, to fill the gap in evidence because there was, realistically, no meaningful way of securing direct evidence,”1098 such inferences were unavailable in that case. This was due to the multitude of interests (real and asserted) in and adjacent to the claim area, which created two obstacles to such an inference. Firstly, on the assumption that, subject to evidence of occupation at first contact, it is more probable than not that a particular group of Aboriginal people occupied an area of country at sovereignty: There may also be areas where the proximity of a particular native title holding group enables it to be inferred that they are the holders of native title rights and interests in adjacent country, where there is no other competing claimant group ... particularly so where there is a broader cultural bloc of traditional people holding the native title rights and interests in that adjacent country.1099

But here His Honour held that “such inferences are not routinely available” due to the claim area being surrounded entirely by three distinct determinations of native title, and “no ready inference to be drawn” from this in favour of any one of the three competing applicants.1100 Secondly, Mansfield J held that “much of the evidence led by each of the Applicants was inevitably inconsistent with, rather than complementary to, the claims of competing Applicants.” His Honour cited the example of one applicants’ assertion that a particular area is a men’s only place where women are forbidden, which was directly contradicted by the other two applicants. On this basis, His Honour held that “[i]t is an area where the competing claims cannot co-exist.”1101

10. Disregarding prior extinguishment Sections 47A and 47B of the Native Title Act allow the Court to disregard prior extinguishment of native title for reserves and vacant Crown land covered by applications respectively, provided the relevant area is occupied by one or more members of the native title claim group when the application is made. In Alyawarr, Mansfield J inferred that the claimants had established the requisite level of occupation given they “resided nearby, and in the traditional way hunted and traversed the land

1096 Ibid, at [296] 1097 Ibid, at [316] 1098 [2016] FCA 899 at [706] 1099 Ibid, at [707] 1100 Ibid, at [709] 1101 Ibid, at [710]. Whilst not explicit in the way it was in this case, it seems reasonable to assume that the capacity for favourable inferences in other unsuccessful native title determinations may have been strained by the competing applications involved, such as in Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 and Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15.

160 | P a g e around Alepeyewenh.”1102 1103On appeal 1104 in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Groups03 Wilcox, French and Weinberg JJ rejected the Northern Territory submission that:

the Court should act only on direct evidence of the occupation required by the section and not upon inference ... [because] s 47B has a significant effect. ... Courts are frequently called upon to reach conclusions about matters of great significance upon inferences drawn from evidence. There is nothing about s 47B that requires a more restrictive approach to the discharge of the Court’s function.'1'10*

In Rubibi Community v State of Western Australia (No 7j,1105 Merkel J held that while direct evidence to support a finding of claim group member occupation at the relevant dates was preferable, the matter could still be resolved by inference that:

the same, or a substantially similar, usage by claim group members occurred at the relevant dates. The main reason for that conclusion is that the usage is traditional and of a kind that is likely to have been ongoing over a long period. Accordingly, I am prepared to infer that, at the relevant dates ...it is more probable than not that one or more claim group members visited and used these bush areas.1106

More recently, in Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia,1'07 Rares J acknowledged that there is no precise basis to make such a determination, but the evidence of the claimants’ “enthusiasm to range over Yindjibarndi country when they were on it provides a sound basis for the inference, that I draw” of occupation by the claim group members at the relevant time.1108

11. Adverse inferences and tactical burden Adverse inferences and matters of tactical burden arise in various respects in native title matters, including in relation to information that might be assumed to be within the possession of the Crown by virtue of its various roles and responsibilities carried out in relation to a claim area at the relevant time, and as the keeper of the public archive, and whether cultural issues should be a consideration in relation to any failure by an individual member of the claim group to give evidence. In relation to the former, Lee J held in Ward:

If it is accepted that the Crown is presumed to have had knowledge of relevant circumstances and events concerning the burden of native title on its land at material times and to have had access to all relevant resources, there can be no suggestion of unfairness in a trial process in

1102 [2004] FCA 472 at [313] 1103 [2005] FCAFC 135 1104 Ibid, at [191] 1105 [2006] FCA 459 1106 Ibid, at [121] 1107 [2017] FCA 803 1108 Ibid, at [301], with reference to Luxton v Vines (1952) 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ; and Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR at 276 at [88]

161 | Page which Aboriginal applicants are permitted to present their case through use of oral histories and by reference to received knowledge.1™9

In relation to the latter, His Honour rejected submissions by the State that the failure to call a relevant member of the claim group permitted the inferences that there was no connection to a particular community at sovereignty to be drawn with more confidence, on the grounds that “the relevant evidence was before the Court and there was nothing to suggest that there was material particularly within the knowledge of that person.11091110

Relevant to a tactical burden, Carr J held in Ward v State of Western Australia1111 that:

where facts are peculiarly within the knowledge of party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its commonsense approach to evidence. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the commonsense approach to evidence 1112

In relation to inferences against claimant group members, in De Rose O’Loughlin J held that in relation to an applicant, who was referred to throughout the evidence and submissions:

Her evidence would have been of value in assessing her generation's views on native title. ... Bearing in mind that she was presumably regarded as being a person of sufficient importance to be included as one of the original twelve applicants, it was puzzling that she did not give evidence and that no evidence was led to explain her absence. I can only infer that if she had given evidence, it would not have assisted the claimants' cause.1113

His Honour also stated it was “very disappointing and somewhat significant not to have received evidence from more young people. One is left wondering whether the members of the younger generations have the same interest in native title entitlements as their elders.”1114

Similarly, in Wongatha No 9 Lindgren J responded to submissions that where only some of the witnesses from a particular group testified on a particular matter relevant to the acknowledgement and observance of laws and customs, His Honour should draw an inference that evidence from such persons would not have assisted with respect to that matter.1115 His Honour held it was appropriate to draw such an inference,1116 and that “none of the biological descendants could have given evidence which would have significantly assisted in respect of the acknowledgment and observance by the Maduwongga Claim group of traditional laws and customs.”1117

1109 (1998) 159 ALR 483 at 504 1110 Ibid, at 42 1111 (1996) 69 FCR 208 1112 Ibid, at 217. This approach was similarly adopted in Moses Silver, Ishmael Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 at [23] and in Ashwin and Others on behalf of the Wutha People v West Coast Geoscience Pty Ltd and Another [2014] NNTTA 88 at [14] - [15] 1113 [2002] FCA 1342 at [11], with reference to Jones v Dunkel (1959) 101 CLR 298 1114 Ibid, at [15] 1115 [2007] FCA 31 at [959] 1116 Ibid, at [960] 1117 Ibid, at [3564], with reference to Jones v Dunkel ^959) 101 CLR 298 at 308

162 | P a g e However, in Narrier, Mortimer J did not readily draw an adverse inference in relation to the departure of a witness. Her Honour noted the cultural difficulties applicable to the presentation of evidence, and considered “he simply felt he was unable to stay any longer in circumstances where he was clearly concerned that what was occurring was not in accordance with his traditional laws and customs.”1118

12. Conclusion to Chapter 8 This Chapter provided an analysis of the approaches taken by relevant Courts to inferential reasoning regarding the connection requirements in native title determinations. This case law highlights concerns amongst the judiciary similar to those raised elsewhere in Chapters 2 and 4, in that inferences are required to fill gaps in the evidentiary record, should be drawn having regard to the deficiencies and perspectives inherent in the archive, and be drawn with a consciousness of judges’ own assumptions and prejudices.

The analysis in this Chapter again supports the finding in relation to Research Question 2 that there are already developed principles akin to informal guidelines for inferential reasoning in native title determinations. There are numerous significant cases, including obviously Gumana, Gudjala and Wongatha # 9 that make significant contributions to clear principles for application to inferential reasoning generally, with Gumana the touchstone for many subsequent cases. There are also numerous cases that provide clear and consistent principles in relation to specific issues relevant to a native title determination. The combination of the analysis in Chapter 7 and in this Chapter therefore underpin the finding in the affirmative regarding Research Question 2 (and the contents of the Inference Guidelines), subject to the qualifications raised in the conclusions to Chapters 5 and 6.

This Chapter identified that similar to the matters analysed in Chapters 6 and 7, inferential reasoning must not be limited by unrealistic or unreasonable principles, and should be based in common sense and human logic, where there is a proper foundation for them in the facts proved in the proceedings, and with regard to the evidence considered as a whole. Whilst evidentiary challenges may justify greater inferential reasoning, an over-riding consideration is that inferences may only be drawn where they are supported by evidence of matters prescribed by the Native Title Act and the applicable case law interpretations of it.

The consequence of this is that the Court must always be satisfied there is evidence (beyond the unsystematic and fragmentary), which supports inferences required to confirm the continuance of the existence of a normative society in relation to the claim area since sovereignty. Evidence unrelated to this will be irrelevant to found such an inference, unless it is evidence of subsidiary matters which assist in drawing inferences about such matters. This finding crucially underpins the answer to Research Question 3, that balance can be achieved in the Inference Guidelines to achieve the remedial objects of the Native Title Act and account for the mishchiefs identified by the Courts and

1118 [2016] FCA 1519 at [223]. See also Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643 at [122] for an example of the Court declining to draw an adverse inference because of the lack of testimony from an expert witness where it was likely his evidence would have been similar to that of another expert who was called as a witness.

163 | P a g e elselewhere, without impermissibly enlarging the scope of native title. This is achievable by the Courts applying the dispensations and considerations identified elsewhere in this thesis and provided for in the Inference Guidelines, but still remaining true to the requirements of the Native Title Act and the precedents for how it has been interpreted to apply.

Caution should be exercised not to draw inferences based on an historical snapshot, but rather should be based on evidence which spans a sufficiently long period to assess adaptation and change. In addition, the irreversible consequences of a negative determination is a relevant factor in considering the appropriate scale of probabilities applicable to the drawing of an inference of loss of connection.

Clear principles have been laid down and followed by the Courts regarding the drawing of inferences of a tradition or custom existing since settlement, including the period between sovereignty and the point in time when the evidentiary record (archival or relayed by oral tradition) is sufficiently reliable.

These principles involve both an absence of evidence to the contrary (suggestions of which must be scrutinised according to normal evidentiary principles), and positive evidence sufficient to constitute a foundation for the drawing of the inference (consistent with the requirements for proof of a normative society and other matters interpreted by the Courts as required by the statutory definition of native title). These principles also require evidence based on general reputation, which will be strongly grounded where that evidence is from senior elders regarding instructions received from grandparents, such that a significant proportion of the period of time in which maintenance of connection must be proved is covered.

Such evidence may be based on proof of custom, retrospective continuance or attribution. This will depend on the circumstances of what has been observed at the relevant time, and any evidence of intervening events (such as European contact) which may have disrupted the exercise of the custom. Such inferences may be more readily drawn over shorter periods.

Methods for inferring maintained observance of traditional laws and customs between sovereignty and contact with Europeans sufficient for the development of the archive or the relayed experiences of living witnesses include reference to historical records, where these are sufficiently continuous, or an examination of the similarity of a society and its laws and customs at multiple points in time.

Other bases for such inferential conclusions include the intricacy and constitutional status of systems of laws and customs being such that they are unlikely to be of recent invention, and contemporary evidence of contemporary normative rules as the basis for an inference of the existence of the normative rule at sovereignty.

The case law also provides principles for determining matters relevant to proof of biological descent and geographic boundaries of determination areas, having regard to the complexities involved in both respects. Judgments in native title matters have also adopted similar approaches to expert evidence to those adopted in general litigation, so that the Courts can appropriately critique the factual foundations and interpretive methodology of the witness as the ultimate drawer of inferences.

164 | P a g e The Courts have also established considerations relevant to drawing inferences in favour of and against a positive determination in areas of overlapping and competing claims. In relation to proof of occupation of an area at the relevant time to support a finding to disregard prior extinguishment under ss 47A or 47B of the Native Title Act, the Courts have been willing to adopt factors relevant to their inferential assessment which provides significant latitude to the native title claimants.

When considering adverse inferences and the tactical burden of the Crown, regard should be had to whether information might reasonably be assumed to be within the possession of the Crown by virtue of its various roles and responsibilities carried out in relation to a claim area over the relevant time, and as the keeper of public archives. In relation to a Court’s decision whether to draw adverse inferences against claim group members who fail to testify or provide limited testimony, consideration should be given to whether any cultural issues (as considered in Chapter 5) may explain such conduct, rather than the conduct being because such testimony would not be helpful to the claimants’ case.

165 | P a g e Chapter 9 - Conclusion

1. Summary of Chapters The aim of this thesis is the development of appropriate Inference Guidelines in line with the recommendation contained in the ALRC Connection Report. The proposed Inference Guidelines are attached at the appendix to this thesis. The style adopted for the Inference Guidelines follows that adopted in the various Bench Books considered in this thesis. The preparation of the Inference Guidelines involved a synthesis of:

• The consistent principles held to be applicable in the case law regarding inferential reasoning, both native title-specific and general.

• Literary critiques of the statutory definition of native title and the requirements of proof emerging from it.

• Concepts which are the subject of relevant literature and existing judicial guidelines in relation to claimant oral evidence, expert witnesses and archival material used as evidence in native title matters.

This synthesis is made possible by virtue of the analysis of these sources of principles and concepts, in Chapters 1 to 8 of this thesis. Chapter 1 provided the context of the native title claims process with regard to the key features of the Native Title Act and how the evidentiary processes operate under it, including the Preamble and Objects provisions of the Act, the definition of native title and the proof requirements drawn from it, the matters which a native title determination must address, the types of witnesses and other evidence relevant to native title claim hearings, and the rules of evidence and procedure that are relevant to native title trials.

Chapter 2 identified the key ALRC Connection Report recommendations, specifically the recommendation for the development of Inference Guidelines and recommendations for amendments to the statutory definition of native title, as well as previous calls for and attempts at relevant reforms, and an analysis of the bases on which the ALRC identified there is an inference-imperative in native title determinations. An analysis of the “judicial-historical endeavour” was the subject of Chapter 3, together with the imperatives these drive for reform of how historically-sourced evidence is interpreted generally, and specifically in relation to native title claims in Australia. This was with reference to common themes identified throughout the international and Australian literature on remedial justice for indigenous peoples, including international law drivers, reconciliation and national identity and legitimacy motivations, pedagogical benefits, and the need for methodologies of inquiry into the past to withstand community scrutiny and maintain public confidence.

Chapter 4 considered the challenges for the inference imperative in native title addressed through recent historiographic and epistemological debates which relate, directly or indirectly, to the proof of native title, including the “History Wars.” It analysed the need, identified in the literature, for the Courts

166 | P a g e to apply inferential reasoning in light of the proof requirements of the statutory definition of native title, and the vagaries of archival material and expert evidence. In relation to archival records, this includes the need for context and genre considerations. In relation to social science and humanities experts, this includes a lack of coherence of function and method to that of the Courts, potential deficiencies in accuracy and objectivity, and general unease amongst the adversarial system.

Specific issues relevant to the oral evidence of Aboriginal and Torres Strait Islander witnesses were analysed in Chapter 5, with a view to identifying key issues relevant to the reception of multiple narratives in the inferential reasoning process in native title trials. These include linguistic and cultural factors that impact on claimant oral evidence, including differences in language and non-verbal communication; lack of eye contact and prolonged silences; limits on rights and abilities to speak amongst individuals; suggestibility, gratuitous concurrence and scaffolding; different conceptions of distance, direction and time; speech and hearing impairments; and potential weaknesses relating to memory.

Chapter 6 provided an analysis of general evidentiary theories relevant to inferential reasoning by the Courts. It considered the steps involved in a simplified version of Wigmorian inferential reasoning, explanatory approaches to inferential reasoning, and cross-cultural considerations. It also considered specific theoretical issues such as the role for generalisations, “common sense” and background knowledge, as well as equal allocation of risk of error, and the comparative costs of being wrong and the rewards of being right in inferential reasoning.

Chapter 7 analysed the how general case and statute laws govern the drawing of inferences, particularly in civil trials. This Chapter considered the basic principles laid down by the Courts for inference drawing, as well as standards of proof applicable for a valid inferences; matters on a continuum which fall short of inferential standards; principles for drawing inferences of proof of custom; principles applicable to adverse inferences and inferences drawn on the basis of a tactical burden; inferences drawn from expert evidence; and statutory guidance for inference drawing in uniform and non-uniform evidence legislation jurisdictions.

Finally, Chapter 8 provided an analysis of the approaches taken by relevant Courts to inferential reasoning regarding the connection requirements in native title determinations. It considered how the Courts have acknowledged the need for inference in such matters and the foundations for drawing these, and key principles relevant to drawing inferences of ongoing observance of traditional laws and customs and the existence of a normative society between sovereignty and the point in time that material bases for evidence came into existence. It also considered the special considerations relevant to genealogical, geographic and expert evidence and for overlapping claims, and for the purposes of disregarding prior extinguishment under the Native Title Act, as well as adverse inferences and the tactical burden in a native title context.

Each Chapter incrementally identified relevant issues to feed into the Inference Guidelines. As is apparent from the conclusions to each Chapter, significant commonality of issues amongst Chapters emerged as the analysis progressed, which greatly assisted in the synthesis of consistent and transparent inputs into the Inference Guidelines.

167 | P a g e 2. Limitations and recommendations for future research There are a number of limitations on the research involved in the preparation of this thesis. The research did not delve into the inferential reasoning processes adopted by experts themselves, whether generally in the social sciences and the humanities, and specifically in the preparation of reports and giving of evidence in native title hearings. It is limited to identifying the role of inference in expert assessments and analysing the implications for the Courts’ approaches to that.

As identified in Chapter 4, the research similarly does not embark on any detailed analysis of the theoretical aspects of the historiography and epistemologies involved in the expert evidence presented in native title determinations. In relation to cultural and linguistic issues, Chapter 5 compiles conspicuous examples of linguistic and cultural challenges for Aboriginal and Torres Strait Islander witnesses with regard to the existing literature, particularly the Bench Books. It does not extend to testing these theories through interviews with actual claimant witnesses. These matters could be expanded upon by further research through various disciplines to analyse geographic, contextual, gender and generational variations.

Other future research could be directed at more comparative assessments, such as in relation to the implications for Inference Guidelines of the differences in content of Aboriginal title law in Canada, or of the specific procedural approaches of the Waitangi Tribunal in New Zealand. In relation to issues of content in Australian native title, future research could also be directed at analysing approaches to inferential reasoning in relation to native title compensation claims, particularly in relation to intuitive approaches to assessing heads of damages such as solatium. Beyond the pure inference aspects of this thesis, future research could also consider the potential effects of recommendations 5-2 and 5-3 in resolving various matters raised in the historiographic and epistemological debates, such as whether these recommendations are necessary to resolve debates regarding the appropriateness of the methodologies adopted by Black CJ in Yorta Yorta FC and Lee J in Ward (in contrast to Olney J in Yorta Yorta) for assessing continuity of connection.

3. Findings In addition to the development of the Inference Guidelines, this thesis is directed at answering three research questions. These questions, and the answers concluded based on the analyses of the various matters involved, are as follows:

Research Question 1: What issues are raised in the literature on remedial justice for indigenous people, recent Australian historiographic and epistemological debates, and existing literature and tools used by the Courts in relation to special considerations regarding oral evidence of Aboriginal and Torres Strait Islander peoples, which give rise to the inference imperative in native title?

Answer:

The issues raised in the literature in relation to remedial justice for indigenous people, which are relevant to the need for clear guidelines around inferential reasoning drawing upon historically- sourced evidence, include:

168 | P a g e • International law obligations regarding the rights of all persons to know and transmit their histories and oral traditions and to participate in a process for the recognition of traditional interests in land.

• National aspirations to achieve reconciliation given the role played by a transparent and fair historical record in such matters.

• The value pluralist and democratic approaches to observing and recording the past has for national identity and legitimacy.

• The pedagogical benefits that the judicial-historical endeavor can bring.

• The need for methodologies of inquiry into the past to withstand community scrutiny and maintain public confidence.

The issues raised in the relevant historiographic and epistemological debates include the need for the inferential process to be applied to archival evidence conscious of the attributes of such material that lend themselves to suggestions of discontinuity, including characteristics that promote absence or limited observation of Aboriginal people, misinterpretations due to lack of observer qualifications, and language differences. This requires an approach with particular regard to:

• Broader contextual evidence that mitigates gaps in the record, including how the material fits with the wider literature applicable locally and to the broader region, the impacts of external factors such as Government policies and frontier cultures, and corroboration or contradiction by different forms of evidence (including oral evidence).

• The genre of the archival evidence put before them, reading against the grain the writings of the recorder mindful of the motivations, standpoint limitations and cultural and political perspectives that may influence what is recorded.

In drawing inferences regarding expert evidence in native title matters, Courts should be conscious of the relative risks of interpretative indeterminacy involved in the relevant material, the room for error in the primary and secondary materials, any selective or partial use of material, and potential inherent subjectivities of witnesses. This includes having regard to bias and political agendas arising from trends in academic circles, considerations of loyalty, human frailty and mere self-interest.

Judges should also adopt an adequate level of introspection before drawing inferences, by considering the extent to which they have sufficient skills to draw the relevant inferences, as well as a consciousness of their own cultural and political subjectivities that may affect these. A consciousness also of the limitations posed by the adversarial process should be brought before drawing inferences based on potentially truncated evidence of experts.

In relation to Aboriginal and Torres Strait Islander oral evidence, the issues raised in the literature include a need for the Court to ensure potential cultural biases do not colour inferences that may be drawn from the demeanour of an indigenous witness, including inferences of credibility or otherwise, having regard to the following factors:

169 | P a g e • The need for alertness for possible misunderstandings by witnesses due to language differences, miscommunications due to the stressful nature of the Court, and differences of cultural significance of non-verbal communications.

• Indigenous witnesses may avoid eye contact with Counsel or the Judge, as a matter of respect rather than as a sign of dishonesty, and may involve extended periods of silence or an unwillingness to answer due to other cultural differences, rather than a lack of candour.

• Witnesses may be subject to cultural restrictions on rights or abilities to speak on a certain topic or in front of certain audiences, rather than not having the requisite knowledge or being evasive.

• Question and answer methods in the Courtroom can pose particular confusion and stress for indigenous witnesses, who may be accustomed to more indirect and gradual approaches to exchange of information. During cross-examination, there is potential for suggestibility, gratuitous concurrence and scaffolding amongst witness’ responses due to cultural approaches to showing deference to, and building rapport with, the questioner, which should not be misconstrued.

• Aboriginal people often have different conceptual approaches to communicating matters such as time, direction and distance, which of themselves should not be the basis for discounting probability and weight for want of direct correlation with Western approaches.

• A witness may suffer from medical ailments that result in impairments to hearing or speech, and such factors should be properly factored into the overall assessment of the witness’ evidence. Potential weaknesses relating to memory (including the potential for distortion over time and confirmation bias) should also be taken into account when drawing inferences in favour or to the detriment of a successful finding of the existence of native title.

• The weight of oral evidence of claimants should not be subjugated to that of other forms of evidence based on any epistemic preferences of the Courts.

Research Question 2: To what extent have the Courts already developed principles akin to informal guidelines, through the application of consistent bases, for the drawing of inferences in relation to the connection requirements for a native title determination, and to what extent do these provide a bright line test or established taxonomy for such matters?

Answer:

A review of the sources referred to in the Inference Guidelines gives a quick insight into whether the case law provides consistent and comprehensive guidelines for the drawing inferences in relation to the proof of connection requirements in a native title determination, or whether broader references are required.

On balance, the answer to the question whether there are already clear guidelines is in the affirmative, although the broader literature provides a useful supplement (subject to the limitations referred to in the answer to Research Question 3). The case law and the broader literature deal

170 | P a g e similarly with the weaknesses around archive material and challenges for expert evidence, as well as judges’ own subjectivities. The literature includes discussions around issues relevant to adverse inferences and a tactical burden, and the case law supplements these discussions very effectively, with the legal principles as to when these will apply.

The level of consistency of principles for inferential reasoning by the Courts in native title determinations is not to be confused with divergence of judicial opinion on the substantive law of native title content. It is quite possible that the latter may have led to an equivalently divergent series of questions or approaches to issues being adopted and these in turn being subjected to inferential reasoning processes in individual native title determinations. But this does not detract from the identified level of consistency of the actual inferential reasoning principles adopted in native title matters, which is a crucial distinction.

As is probably to be expected, the case law extends well beyond the broader literature in specific areas such as proof of genealogy and the borders of a claim area, considerations in relation to overlapping claims and bases to disregard prior extinguishment. Accordingly, the reference to these matters in the Inference Guidelines is heavily sourced in the case law.

Two areas where the case law does not extend into as significantly as the broader literature is in relation to the oral evidence of claim group members, and the actual mental processes involved in inferential reasoning. In relation to the first of these, there is a clear consciousness in the case law of the need for the Court to take cultural and linguistic factors into account. However it falls to the various Bench Books considered in this thesis for the more detailed guidance on these matters, and accordingly this level of detail has been incorporated into the Inference Guidelines.

In relation to the mental processes of inferential reasoning, the case law is limited to acknowledgments of key matters such as the application of common sense and general experience. Whilst there is a serious question in relation to whether judges will extend their analytical approach to the ordered and sequential processes proposed in the literature, a number of these have merit and have therefore also been incorporated into the Inference Guidelines.

The answer to the second part of this question is more difficult. To the extent a bright line test or taxonomy requires something formulaic from which claimants could presuppose their likely success or otherwise, this is not possible to achieve. Ultimately, Courts’ discretions around the inferential reasoning process, the acknowledged (despite all best endeavours) subjectivities inherent in that process, and the particularities of individual claims are likely to preclude this.

However, to the extent a bright line test or taxonomy means a comprehensive and consistent set of principles, the various matters drawn together in the Inference Guidelines achieve that, and give the Courts a single reference of relevant principles and methods to guide their reasoning, and hopefully, a greater level of consistency and transparency for the parties. Codifying these principles in a Bench Book style of guideline has a number of advantages over amendments to the Native Title Act (which is more strictly in accordance with the ALRC Connection Report recommendation 7-1). These are:

171 [Page • The ability to capture a significantly greater level of detail in relation to the general principles relevant to inferential reasoning in native title determinations, and the specific issues that may require inference in such matters. • A greater degree of flexibility, so that the Inference Guidelines can be updated in line with developments in the case law. Obviously, amendments to the Native Title Act are more onerous to achieve, whereas a Bench Book can be overseen and revised by a suitable panel of authors, on an as required basis. • A holistic approach to all sources of inputs. The case law is already highly comprehensive, but by capturing the key principles and recommendations in a Bench Book, the case law can be supplemented with the historiographic, epistemological, cultural and linguistic considerations drawn from the literature. The inclusion of matters which do not of themselves have the force of law is appropriate as it is consistent with the practice of Courts taking judicial notice of broader matters, the inherent discretions involved in inferential reasoning and the assertion that as judges draw on their own background and common sense, they may need to “acquire” broader perspectives in the inferential reasoning process.

Research Question 3: How can balance be achieved in Inference Guidelines to ensure the remedial objects of the Native Title Act are achieved and the mischiefs identified by the Courts and elsewhere are accounted for, without impermissibly enlarging the scope of what constitutes native title?

Answer:

The key to the answer to this question is the reference amongst the Australian and Canadian case law to the over-riding consideration in inferential reasoning, being consistency of the outcomes with the requirements of the law, and in the circumstances of this thesis, the Native Title Act and the precedents for how it has been interpreted to apply. Whilst the challenges of a largely wholly-oral culture and archival weaknesses have been acknowledged as grounds to justify greater inferential reasoning, an over-riding consideration is that inferences may only be drawn where they are supported by evidence (beyond the unsystematic and fragmentary) of continued connection through the substantially uninterrupted acknowledgement and observance of traditional laws and customs since sovereignty, and the continuous existence and vitality of a normative society governed by those laws and customs since that time.

This question goes to the heart of the key difference between the case law and the historiographic literature considered in this thesis. The former is subject to binding precedent and the inferential reasoning is appellable. The latter has the luxury of neglecting the requirements for inferential reasoning to be based on the existing law, and can rely on policy positions in relation to what the law “should” be (such as, for example, whether Black CJ’s approach in Yorta Yorta FC and Lee J’s approach in Ward now take primacy over the approach of Olney J’s approach in Yorta Yorta).

Such matters have relevance to this thesis to the extent they relate to the ability of the Courts to draw inferences about the content of traditional laws and customs at sovereignty and the existence of a normative society at sovereignty, based on contemporary evidence of contemporary normative rules,

172 | P a g e as the Court did in Ngarla. However, the emphasis the ALRC Connection Report placed on contemporary evidence as a source of inference does not overcome the need for inferential reasoning in native title determinations to consider the broader principles laid down in the case law, and indeed Bennett J in Ngarla accepted that the Court’s entitlement to draw such inferences from contemporary evidence remained squarely within the application of the broader Gumana Principles.1119

A finding of this thesis is therefore that consideration of contemporary evidence may support positive inferences in the assessment of connection, but not in isolation. The overall inferential reasoning process must also have regard to whether other, mandatory principles captured in the Inference Guidelines are satisfied in tandem.

To achieve more than this is not the purpose of recommendation 7-1 of the ALRC Connection Report, and other recommendations, such as 5-2 and 5-3, would need to be pursued. There is a clear tension between these recommendations, which diminishes the extent to which they can be said to be true alternatives to each other. Recommendations 5-2 and 5-3 are directed at paring back the case law requirements for proof of native title, the result of which may be what various commentators argue is a fairer and more just approach of contemporary evidence being sufficiently compelling to draw favourable inferences without the need to follow other, currently existing, principles.

In contrast, recommendation 7-1 is about codifying the principles of the existing law. The ALRC recognises this, as recommendation 7-1 is directed at providing “legislative affirmation of the practice of the Federal Court in drawing inferences in relation to proof of native title,”1120 and not any broader agenda in relation to the removal or diminution of evidentiary requirements to establish connection in native title determinations. However, as the Inference Guidelines show, this can be achieved in a manner that incorporates the key historiographic, epistemological, cultural and linguistic considerations from the broader literature, as a guideline is consistent with the Court’s discretionary inferential processes and its ability to take judicial notice, and provides the basis for individual judges’ acquisition of other influences beyond their own background and existing perspectives.

1119 [2012] FCA 1268 at [724] 1120 ALRC (April 2015), op cit, at 221

173 | Page Appendix - Inference Guidelines

Forward On 30 April 2015, the Australian Law Reform Commission (ALRC) delivered its report Connection to Country: Review of the Native Title Act 1993 (Cf/7j1121 (ALRC Connection Report).

The terms of reference for the ALRC Connection Report, issued by the then Commonwealth Attorney General on 3 August 2013, included a request that the ALRC consider “in light of the Preamble and Objects of the” Native Title Act 1993 (Cth) (Native Title Act) “what, if any, changes could be made to improve the operation of Commonwealth native title laws and legal frameworks” including with particular regard to “connection requirements relating to the recognition and scope of native title rights and interests.”1122

Amongst its recommendations, the ALRC Report recommended guidance be included in the Native Title Act regarding when inferences may be drawn in the proof of native title, including from contemporary evidence.1123

The following definition of inference, which was referred to in the ALRC Connection Report, has previously been adopted by the High Court:

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law."24

The High Court has emphasised the importance of inferences, which do not have subordinated evidentiary values, but rather “[ijnferences from actual facts that are proved are just as much part of the evidence as those facts themselves.”1125

This ALRC Connection Report recommendation is in line with the findings of various Courts that there is a lack of consistent and comprehensive guidelines regarding these matters. For example, in the judgment of Gleeson CJ, and Gummow and Hayne JJ in Members of the Yorta Yorta Aboriginal Community v State of Victoria1126 1127(Yorta Yorta HC), their Honours stated:

It is not possible to offer any ‘single bright line test’ for deciding what inferences may be drawn or when they may be drawn, any more than it is possible to offer such a test for deciding what changes or adaptations are significant^27 (emphasis added).

1121 ALRC (April 2015), op cit 1122 Ibid, at 6 to 7 1123 Ibid, at 146, 220 to 221 1124 G yH(1994) 181 CLR 387 at 390 per Brennan and McHugh JJ; ALRC, op cit, at 217 1125 Jones i/ Dunkel (1959) 101 CLR 298 at 309 per Menzies J 1126 (2002) 214 CLR 422 1127 Ibid, at [82], adopting the language of Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [84]

174 | P a g e Similarly in relation to the use of historically-sourced evidence, Gummow J noted in Wik Peoples v State of Queensland^28 (Wik) that “[\]here remains lacking, at least in Australia any established taxonomy to regulate such uses of history in the formulation of legal norms”11281129 (emphasis added).

This document is intended to provide such guidelines to the Federal Court and Courts hearing appeals therefrom, as well as other Courts that are required to consider matters relevant to native title. These Inference Guidelines have been prepared having regard to the existing and consistent practices of the Courts in inferential reasoning generally and in native title matters in particular, as well as with regard to concerns raised in relevant literature regarding the challenges for the sources of evidence applicable to native title determinations.

Contents of these Inference Guidelines The information in these Inference Guidelines is intended to codify the principles identified in the case law, as well as considerations from broader contexts, for the drawing of inferences in the process of proof of connection requirements to determine native title determination applications. Judicial officers are provided with guidance in relation to each of the following matters which are the subject of this document:

Section 1 Rationale for Inference Guidelines

Section 2 Key principles in inferential reasoning

Section 3 Standards of proof

Section 4 Maintenance of connection

Section 5 Claimant oral evidence

Section 6 Archival challenges

Section 7 Expert witnesses

Section 8 Tactical burden and adverse inferences

Section 9 Disregarding prior extinguishment

How to use these Inference Guidelines These Inference Guidelines have been prepared with the intention of minimising repetition between sections. They should therefore be read as a whole to consider the necessary principles relevant to inferential reasoning regarding a native title claim groups’ maintenance or otherwise of the requisite connection with the claim area.

However, there may be instances where specific regard needs to be had to the principles relevant to inferential reasoning applicable to particular types of evidence. Sections 5, 6 and 7 are each directed

1128 (1996) 187 CLR 1 1129 Ibid, at 182 -183

175 | Page at different types of evidence that the Court will need to consider in native title trials, and these may be referred to individually as necessary.

This document may also be referred to selectively in relation to specific issues relevant to connection requirements and other matters arising under the Native Title Act. Section 4 is broken into subsections (key principles; preponderance and weight of the available evidence and absence of evidence to the contrary, inferential reasoning regarding relevant points in time; genealogical evidence, geographic boundary evidence; and special considerations applicable to overlapping claims) for this purpose.

Similarly, regard may be had to sections 8 and 9 on a standalone basis where guidance is sought on the specific issues the subject of those sections.

These Inference Guidelines are limited to issues relevant to inferential reasoning and do not seek to restate in detail the various requirements relevant to connection in a native title claim. These Inference Guidelines should also be applied alongside other considerations that go to judicial assessment of admissibility, credit and weight, which are only the subject of these Inference Guidelines to the extent they are relevant to inferential reasoning specifically.

These Inference Guidelines are applicable both to native title determinations at first instance, and appeals. The Full Federal Court has clearly stated that inferences drawn from other findings of fact “cannot be regarded as credit-based findings of fact that are entitled to deference on appeal,” and where the inferential reasoning of the trial judge may have been flawed, such matters may be the subject of further consideration.1130

These Inference Guidelines may also be referred to by the Court in consent determinations, where the Court will still need to satisfy itself of the veracity of inferences relied on by the parties given the judgment in rem nature of native title determinations.1131 In this sense, the Courts can apply these Inference Guidelines in exactly the same manner is they might in a litigated matter. However, the Inference Guidelines should also be applied by respondent parties, particularly the Crown, in considering the evidence of claimants and their own evidentiary material. The Inference Guidelinese should therefore provide a useful supplement to connection guidelines adopted in various jurisdictions.1132

The application of these Inference Guidelines to consent determinations may contribute to policy considerations such as the capacity of native title to promote Indigenous economic development and

1130 De Rose v State of South Australia [2003] FCAFC 286 at [341] 1131 For example, Lander v State of South Australia [2012] FCA 427 at [48] per Mansfield J 1132 e.g. Queensland Department of Natural Resources and Mines, Guidelines for preparing and assessing connection material for Native Title Claims in Queensland, November 2016, https://www.dnrm.Qld.qov.au/ data/assets/pdf file/0003/108660/quide-preparinq-assessinq-connection-material.pdf (accessed 17 June 2018); South Australian Crown Solicitor’s Office, Consent Determinations in South Australia: A Guide to Preparing Native Title Reports, 2004, https://www.lqa.sa.qov.au/webdata/resources/files/Consent Determinations in SA A Guide to Preparing Native Title Re ports.pdf (accessed 17 June 2018); Western Australian Department of Premier and Cabinet, Guidelines for the Provision of Connection Material, February 2012, https.7/www.dpc.wa.qov.au/lantu/MediaPublications/Documents/Guidelines-for-the- provision-of-connection-material-Feb-2012-FINAL.pdf (accessed 17 June 2018)

176 | P a g e reduce disadvantage, enhance trust and cooperation arising from native title negotiations, and reduce the sheer economic cost of gathering and assessing detailed connection material.1133

Section 1 - Rationale for Inference Guidelines 1.1 Beneficial purpose and other drivers

A driver for the development of these Inference Guidelines, and an influencing factor in their contents, is the Preamble to and Objects of the Native Title Act. This is consistent with the terms of reference for the ALRC Connection Report. The Preamble to the Native Title Act recognises the need for a special procedure for the just and proper ascertainment of native title, in a manner that has due regard for the unique character of native title rights and interests. This supports the need for appropriate approaches to inferential reasoning, having regard to the evidentiary difficulties faced by claimants as discussed in sub-section 1.3 of these Inference Guidelines.

Objects (a) and (c) in s 3 of the Native Title Act, namely the recognition and protection of native title, and to establish a mechanism for determining claims to native title, support a similar conclusion. The Preamble and Objects of the Native Title Act have been interpreted as affording that Act both a remedial character and beneficial purpose.1134

Beyond matters of domestic law which compel a need for comprehensive, consistent and transparent guidelines for inferential reasoning in native title matters, there are a number of broader policy considerations which drive the need for an appropriate assessment of matters grounded in historically-sourced evidence. There are international law drivers in relation to the rights of all persons to know and transmit their histories and oral traditions, as well as obligations on states to provide mechanisms to facilitate this, and rights of persons to participate in a process for the recognition of traditional interests in land, such as the United Nations Declaration on the Rights of Indigenous People,1135 the United Nations Commission on Human Rights Updated set of principles for the protection and promotion of human rights through action to combat impunity,'1™6 and the International Labour Organisation Convention on Indigenous and Tribal Peoples.1137

These matters can also have relevance to national aspirations to achieve reconciliation given the role played by a transparent and fair historical record, as recognised for example in the findings of the Canadian Truth and Reconciliation Commission.1138 Similarly, pluralist and democratic approaches to observing and recording the past can be valuable for matters of national identity and legitimacy.1139 Methodologies of inquiry into the past also need to withstand community scrutiny and maintain public confidence, because when an interpretation of historical events is employed for the purposes of a

1133 Duff, op cit, at 17 1134 Pareroultja v T/c/cne/- (1993) 42 FCR 32 at 44; 117 ALR 206 at 218 per Lockhart J; Kanak v National Native Title Tribunal (1995) 61 FCR 103 at 124 per Lockhart, Lee and Sackville JJ; ALRC (April 2015), op cit, at 226; Bartlett, op cit, at 155 - 156 1135 United Nations Declaration on the Rights of Indigenous People, op cit, at Articles 13, 15 and 17 1136 United Nations Commission on Human Rights, op cit, at Principles 2, 3 and 5 of Part II 1137 International Labour Organisation, op cit, at Article 2 1138 Truth and Reconciliation Commission of Canada, op cit 1130 Barkan, op cit, at 345

177 | P a g e judicial determination, “history becomes as fixed and unchangeable (or not) as is the law itself.”1140 An example of this is apparent from the Full Federal Court’s reference in Anderson v Wilson1141 to the High Court’s findings in Wik, that “[wjhether the history was right, wrong or indifferent, it had formed part of the legal reasoning of the High Court and, to that extent, had become binding.”1142

Finally, there can be pedagogical benefits from a comprehensive, consistent and transparent approach to such matters. For example, North J in Nangkiriny v State of Western Australia'"43 acknowledged that “[t]he evidence given in this case is preserved for history in the transcripts of proceedings. In time it will contribute to creating an understanding which would not have existed without this case.”1144

Relevant Considerations

> The beneficial purpose and remedial character of the Native Title Act support an interpretive approach to evidence that is cognizant of the unique character of native title rights and interests.

> Other factors, such as international law obligations, reconciliation and national identity, public confidence and the pedagogical by-product of Court judgments support the need for comprehensive, consistent and transparent treatment of historically-sourced evidence.

1.2 Evidentiary challenges

The requirements to successfully prove maintenance of connection in a native title claim, of:

> substantially uninterrupted acknowledgement and observance of traditional laws and customs by each generation of a claim group since the acquisition of sovereignty;

> a connection with the land or waters the subject of the claim by those laws and customs; and

> the continued existence of a normative society, being a society united in and by its acknowledgment and observance of those laws and customs, throughout that period,1145 are drawn from the definition of native title in s 223 of the Native Title Act.

1140 Selway, op cit, at 153 1141 [2000] FCA 394 1142 As observed by Selway, op cit, at 152; See also State of Western Australia v the Commonwealth [1995] HCA 47 at [1] and [9] per Dawson J; and State of Western Australia v Ward [2002] HCA 28 at fn 816 per Callinan J 1143 [2002] FCA 660 1144 Ibid, at [17]. Other examples of this have been identified as the judgments of Merkel J in Shaw v Wb/f [1998] FCA 389 and Von Doussa J in Chapman v Luminis Pty Ltd (No 4) [2000] FCA 1121. For examples of the preservation of historical expert evidence from Australian native title cases, see Owen, op cit (in relation to Bennell v State of Western Australia [2006] FCA 1243) and Cane, op cit (in relation to Mark Anderson on behalf of the Spinifex People v State of Western Australia [2000] FCA 1717) 1145 Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422; 194 ALR 538 at [46], [47], [86] and [87]

178 | P a g e The very heavy burden these requirements place on native title claimants has been recognised in various decisions of the Courts, which have noted:

> The “many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days” made proof by recorded details next to impossible.1146

> The need to interpret evidence having regard to “the disadvantage faced by Aboriginal people as participants in a trial system structured for, and by, a literate society when they have no written records and depend upon oral histories and accounts,” and accordingly evidence should be interpreted cognisant of these evidentiary difficulties.1147

> That “[a]ny proceeding in which the Court is required to make findings as to traditional laws and customs practised more than 150 years ago must necessarily rely upon evidence other than that of the personal observations of witnesses.”1148

> “[T]he historical record is incomplete. ... The nature of these 'silences' and the manner in which they should be addressed ... 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.”1149

> In native title cases there is a greater than usual “role for inferential reasoning, because of the passage of time between the circumstances at or before sovereignty, and the circumstances prevailing at the time the Court must determine,” given “the paucity and nature of any broadly contemporaneous evidence” concerning the historical situation and that “the knowledge of the old people of any claimant group can only reach back so far. There will be a gap in time, which must be filled — if it can be filled — by the drawing of inferences.”1150

These matters have also been recognised beyond the judgments of the Courts. Other authors have noted “Australian legal history, as far as cases involving Indigenous parties are concerned, is about absence, about what is not available.”1151 This combined with the judicial interpretations placed on the requirements arising from s 223 of the Native Title Act “requiring the proof of laws and customs at the time of sovereignty, means that the inferential leaps necessary for a successful claim will be larger than those required in conventional cases.”1152

Such matters are not entirely unique to native title claims, and arise in other areas of litigation as a “definitive correspondence between knowledge and the physical world is an impossible ideal.”1153 Accordingly, Courts must seek out such knowledge rationally and in a manner that may lead to more

1146 Mason y Tritton (1994) 34 NSWLR 572 at 588 per Kirby P (as His Honour then was) 1147 Ward v State of Western Australia (1998) 159 ALR 483 at 504 per Lee J; Jango v Northern Territory of Australia (2006) 152 FCR 250, [462] per Sackville J 1148 Olney J in Yarmirr v Northern Territory of Australia (No 2) (1998) 82 FCR 533 at [21] 1149 Daniel v State of Western Australia [2003] FCA 666 at [149] per RD Nicholson 1150 Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132] and Narrier v State of Western Australia [2016] FCA 1519 at [389] and [390], both per Mortimer J 1151 Curthoys, Genovese and Reilly, op cit, at 141 1152 Carter, op cit 1153 Ligertwood and Edmond, op cit, at 7

179 | P a g e reliable, better justified, and ultimately more accurate decisions. In addition to such epistemological factors, this process is also subject to economic factors (given limited time and resources must be considered, having regard to the epistemological benefits the procedure may bring) and moral factors (to ensure equality of apportionment of risks allocation for errors, so balance should be sought between the costs of being wrong and the rewards of being right).1154

Ultimately, as Brennan J (as His Honour then was) held in Mabo v State of Queensland (No 2J1155 (Mabo), the “difficulties of proof... afford no reason for denying the existence of a proprietary community title capable of recognition by the common law.”1156 Hence the need to ensure the Courts have at their disposal sufficient tools with which to navigate the vagaries of certainty of the evidentiary record to adjudicate disputes with finality, and hence these Inference Guidelines.

Relevant Considerations

> Inferential reasoning is necessary in many forms of litigation, because attaining absolute knowledge of matters relevant to a party’s case is not always possible.

> Such reasoning is even more important in native title claims, due to the specific requirements of the statutory definition of native title, which requires assessments of circumstances which may:

o Pre-date the lived-experience of witnesses, and even relate to a period that spans beyond two centuries.

o Raise additional evidentiary difficulties regarding the proof of a negative proposition, namely no loss of maintenance of connection.

o Rely on evidence from claim group members with principally oral-only traditions and no substantive written sources of reference (as discussed further in Section 5).

o Require regard to less than perfect archival records (as discussed further in Section 6).

1.3 Over-riding qualification

However, whilst inferential reasoning is central to the delivery of the beneficial objectives of the Native Title Act, there are limits to what the drawing of inferences can and should achieve. As Gleeson CJ, and Gummow and Hayne JJ held in Yorta Yorta HC, Courts may be invited to draw inferences to alleviate the difficult problems of proof faced by native title claimants, this “does not alter the

1154 Pardo, op cit, at 4; Stein, op cit, at 105 and 131; Josephson, op cit, at 1626 and 1631 1155 [1992] HCA 23; (1992) 175 CLR 1 1156 Ibid, at [53]

180 | P a g e requirements of the statutory provision,”1157 and much will “turn on what evidence is led to found the drawing of such an inference and that is affected by the provisions of the Native Title Act.”1158

This approach is consistent with approaches to inferential reasoning in native title case law in Canada, where the Supreme Court has held that notwithstanding the relevant Aboriginal perspectives:

> “These must be balanced with the perspectives of the common law.”1159 > “There is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules of evidence,” and “[c]laims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities” such that “the evidence presented by aboriginal claimants should not be undervalued ... [but] neither should it be artificially strained to carry more weight than it can reasonably support.”1160

It is also consistent with general theories of judicial inferential reasoning, where it is acknowledged that “substantive law defines the hypotheses to be tested, the propositions to be proved, and formal rules regulate the manner in which cases are prepared and the admissibility of use of evidence.”1161 1162

These matters are considered further in subsection 4.3 of these Inference Guidelines.

Relevant Considerations

> Inferences may only be drawn in the context of the requirements of the Native Title Act.

> So notwithstanding the need to mitigate the evidentiary challenges faced by native title claimants, the Court must always be satisfied that there is sufficient evidence to support inferences which confirm the existence of a normative society and its connection to the claim area through acknowledgement and observation of traditional laws and customs, substantially uninterrupted since sovereignty.

Section 2 - Key principles in inferential reasoning 2.1 General principles

Dixon CJ summarised the following general principles which apply to the drawing of an inference in favour of a plaintiff’s case in Jones v Dunkel:"62

1157 [2002] HCA 58; (2002) 214 CLR 422 at [80] 1158 Ibid 1159 Lamer CJ in Van der Peet [1996] 2 SCR 507 at [49] and [50], Followed by Lamer CJ in Delgamuukw v British Columbia (1997) 153 DLR (4th) 193 at [82] 1160 Mitchell v Minister for National Revenue [2001] 1 SCR 911 at [39] per McLachlan CJ, followed by Mortimer J in Narrier v State of Western Australia [2016] FCA 1519, at [323] and [404] 1161 Anderson, Schumm and Twining, op cit, at 46 - 47 1162 (1959) 101 CLR 298 at 304 - 305

181 | P a g e > An inference must arise as an affirmative conclusion from the circumstances proved in evidence. > The inference must be established to the reasonable satisfaction of a judicial mind. > In a civil case, you need only circumstances raising a more probable inference in favour of what is alleged according to the course of common experience. > More probable means that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. > But such circumstances must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture - the Court cannot choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. > The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

2.2 What falls short?

There are various guidelines from the Courts as to what will fall short of inference. Whilst the distinction can be difficult to draw,1163 other guidance has been given as follows:

> If facts merely show it is possible that another fact may exist, this is only conjecture, which may “range from the barely possible to the quite possible.”1164 > If “there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”1165 > The “characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division, nevertheless the distinction exists,” with the test being whether or not it is reasonable to draw the inference.1166 > It is not appropriate to infer by effectively choosing the most likely guess, as “the inference must be available and be considered to be more probable than other possibilities.”1167 > A finding “must be established on the balance of probabilities and not merely by guesswork or speculation where the evidence is effectively silent.”1168

Based on these authorities, the spectrum of matters that lead up to what may appropriately form the foundation for drawing a valid inference can be summarised on a “Less Than Certainty Continuum,” and only those propositions that sit on the right-hand side of that continuum will constitute valid inferences.

1163 Jones v Great Western Railway Co (1930) 47 TLR 39 at 45; Lopes v Taylor (1970) 44 ALJR 412 at 418 1164 Carr v Baker (1936) 36 SR (NSW) 301 at 306 1165 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170; Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] 1606 FCA at [17] and [21] per Olney J; Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [807] per Mortimer J 1166 Seltsam Pty Ltd v McGuinness (2000) NSWCA 262 at [84] and [88], drawing from the judgment in Bradshaw v McEwans, (1951) 217 ALR 1 at 5 and its application in Luxton v Vines [1952] 85 CLR 352 at 358 1167 Jackson v Lithgow City Council [2008] NSWCA 312 at [12] 1168 Coles Supermarkets Australia Pty Ltd v Bright [2015] NSWCA 17 at 169 -170

182 | P a g e Less Than Certainty Continuum

Reasonable Conjecture or Possible Probable induction from Speculation objective facts

Guesswork

2.3 Processes for inferential reasoning

There are a number of processes that may be adopted by the Court in applying inferential reasoning. A simplified version of the approach attributed to John Henry Wigmore involves the following steps:1169

Steps Process

1. Assumption The starting point is the assumption that there is a logical relationship between evidence and conclusions of fact.

2. Isolation of factum Information experienced or supporting propositions {'factum probans and probans’) and propositions to be established by inference {“factum factum probandum probandum”) must be isolated. Conclusions to be inferred are those alleged material facts (contended by a party as a factual hypothesis) that would justify a certain determination by the Court, having regard to the lines of argument taken by the parties.

3. Inferring A process of inferring intermediary facts that follow from the intermediary facts evidence, from which further inferences are drawn until the ultimate facts {"ultimate probanda”) can be regarded as discovered through a series of inferences. Such steps involve the following two kinds of inferences:

(a) Chains of Each individual chain of inference should be considered to inferences (or determine support for a factual conclusion or a rival factual conclusion. These assessments are made with regard to

1169 Ligertwood and Edmond, op cit, at 8 - 13, with reference to Wigmore, J.H. The Science of Judicial Proof (3rd edition), Little Brown and Co, Boston, 1937; Anderson, Schum and Twining, op cit, at xviii, 71 and 103 to 108; Heydon, op cit, at 15; Twining (1985), op cit, at 126

183 | Page Steps Process “catenate considerations of relevance, credibility and probative force inferences”) across the multiple steps of reasoning regarding the relationship by which a probans supports a probandum.

(b) Inference of Also known as converging inferences (where independent one fact from items of evidence converge to support the probability of the a number of same conclusion, so that the inference to be drawn is as other separate strong as these constituent parts) or corroborative facts inferences (focused on the credibility of separate witnesses testifying in relation to the same proposition). Individual chains should be considered together to assess the relationship between the evidence and the inferred conclusion. Alternative explanations can be assessed by contrasting these against each other.

4. Probability The combination of inferences is then assessed having regards to assessment concepts of probability.

Another approach the Court may adopt to inferential reasoning is “explanation-based reasoning.” This involves the following two step process:1170.

Steps Process

1. Generating Determined with reference to the substantive law, which itself potential makes provision for what triggers rights, interests, liabilities and explanations of the obligations (and as identified by the parties themselves in their evidence submissions).

2. Selecting the best An explanation that provides the most understanding, being the explanation from explanation which explains “more types of phenomena, explains the list of potential them with greater precision, provide more information about ones as the actual underlying mechanisms, unify apparently disparate phenomena, or one simplify our overall picture of the world,” is to be preferred.

Hypotheses should be evaluated in isolation or in contrast with others, with “better-ness” assessed by weighing explanations against criteria such as greater explanation and explanatory power (consilience), plausibility and coherence (with reference to consistency with background knowledge), internal consistency,

1170 Pardo and Allen, op cit, at 229 - 232; Upton, op cit, at 189; Josephson, op cit, at 1626 to 1629; Nesson, op cit, at 1187 and 1210

184 | P a g e Steps Process likelihood, simplicity, specificity, productive promise and being less ad hoc.

Explanations should also take a contrastive form, to determine between fact and foil and explain not only why one proposition is preferred, but why it is preferred over another so that naked inferences are not accepted without being tested against satisfactory explanations to the contrary. Data can be disregarded if its explanation is merely coincidence, misperception, miscategorization, fraud, perjury, experimental error, noise, or some similar phenomena.

2.4 Caution regarding generalisations, experience and perceptions

In many respects, inferential reasoning processes will be carried out by the Court having regard to its own concepts of “common sense,” “general knowledge” or “experience of the common course of events,” including be applying “generalisations” for the authentication of valid inferences.1171

The Court should identify the generalisation relied on to draw inferences and to test its strength or plausibility. One method to do so is against the following generality, source and reliability axes, to make a holistic assessment based on the extent to which a generalisation tends to “stack up” towards the right-hand side of each axis.1172

1171 Martin v Osborn (1936) 55 CLR 367; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 - 274; Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [42] per Madgwick J; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [342] per Lindgren J; Twining (1985), op cit, at 143 and 145 1172 Anderson, Schum and Twining, op cit, at 101 -102

185 | Page Generality Axis

Generalisations made Generalisations in the specific to the precise case most abstract form or context

Source Axis

Generalisations based on Synthetic/intuiti ve repeated personal generalisations with no experience and acquired identifiable source knowledge

◄-

Reliability Axis

Scientific laws, Strongly held biases or well-founded scientific prejudices held Commonly held but opinions and widely irrespective of available unproven beliefs shared conclusions from data common experience

In applying generalisations, judicial officers should also be vigilant that their general knowledge and experience does not create perceptions that unduly influence their approach to inferential reasoning. The process may be coloured by a judge’s “personal and cultural assumptions and beliefs,” regarding the causal regularities between the environmental inputs, behavioural outputs, and intentional states sets of human agents.1173

The Courts have noted their consciousness of such matters during the process of considering relevant evidence in native title claims on a number of occasions, including a shared tendency with the archival material “to view the Aboriginal society through a Eurocentric lens.”1174 In the course of drawing inferences and considering matters that feed into their inferential reasoning, judges therefore need to be conscious to “peel back or accommodate” their own perceptions, to base their decisions on what really happens in the world out there.”1175 This may require a “process of enculturation,”1176 whereby the judge engages in reasoning which is cognitively appropriate to the concepts involved,

1173 Mack, op cit, at 59; Connolly, op cit, at 122 and 134 1174 Bennell v State of Western Australia [2006] FCA 1243 at [106] per Wilcox J; Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [43] per Madgwick J; Criminal Justice Commission, op cit, at 31; Strelein (2009a), op cit, at 80 1175 Ligertwood and Edmond, op cit, at 41 1176 Connolly, op cit, at 102

186 | P a g e and maintains, fine tunes or abandons assumptions and beliefs in the interpretation and engagement with the evidence.1177

Relevant Considerations

> Generalisation that underpin a certain inference should be tested against the generality, source and reliability axes.

> To the extent the inferential process and general assessments of plausibility rely on the “common sense” and background experience of individual judges, they should exercise introspection to be self-aware of their own individual beliefs, values, standards, cultural perspectives and experience, to test whether they bring any inherent biases to the process, and modify their reasoning to offset this if necessary.

> Individual judges should also consider the matters the subject of Sections 5, 6 and 7, and take into account their own inherent preferences for types of evidence and skillsets to properly interpret different sources of evidence, having regard to those matters.

2.5 Caution for potential missing evidence

In applying a process such as one of those suggested in subsection 2.3, a further factor that should be considered is whether the limited material available for the Court to have regard to in making its judgment raises a likelihood that relevant evidence is unavailable, or whether the limited material is sufficient to base a reasonable decision.1178

Whilst Courts generally don’t have the luxury of deferring judgment indefinitely pending the identification of missing evidence, the inferential process should include regard for the potential that changes in its underlying evidence base (particularly the weakest link in the chain of reasoning, being that which rests on the least empirical evidence), might produce a different factual conclusion.1179

To do this, Courts should test the hypotheses the subject of causal inferences to ensure that the process by which the data came to be observed is fully recorded, the more data the better, to avoid “omitted variable bias” so that competing explanations are not ignored when drawing inferences.1180

Relevant Considerations

> Courts should be vigilant for the potential for missing or unavailable evidence that could undo the probability of an inference that may be drawn, and consider the likelihood for further evidence and whether that evidence might reduce or increase the uncertainty relevant to a potential inference. This is especially with regard to the weakest link(s) in a chain of reasoning.

1177 Ibid, at 99,157 and 160 1178 Hodgson, op cit, at 733 to 734; Ligertwood and Edmond, op cit, at 39 1179 Stein, op cit, at 118; Epstein and King, op cit, at 50; Josephson, op cit, at 1626 and 1631 1180 Epstein and King, op cit, at 24, 77, 102, 103

187 | P a g e Relevant Considerations

> Courts should consider whether the parties have cast their evidentiary nets sufficiently wide to avoid putting judges in the position of drawing inferences based on “omitted variable bias.”

Section 3 - Standards of proof The standard of proof for drawing inferences in civil trials, including native title matters, is the balance of probabilities.1181 1182Williams, Webb and Taylor JJ in Holloway v McFeeters"62 discussed the standard of proof requirements that apply before an inference can be drawn in a civil case, with reference to the following principles:

> In the absence of direct proof, “circumstances appearing in evidence giving rise to a reasonable and definite inference” are sufficient. > Such circumstances “must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture.” > The inference may be drawn, with regard to the course of common experience, where it is more probable from the evidence or admission, left unexplained. > More probable means that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.

Other tests adopted include that the Court must “reach a level of actual persuasion,”1183 provided that “such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.”1184 In the native title context, Mortimer J in Narrier v State of Western Australia,"85 drew the important distinction between:

> a decision on the balance of probabilities whether certain events or circumstances in the past did or did not occur or exist, and > “a decision attended by some more absolute form of certainty which purports to declare absolutely that history ran its course in a particular way.”

Considerations which affect the answer to whether an issue has been proved on the balance of probabilities include the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding.”1186 In this regard, Black CJ (in the minority) in Members of the Yorta Yorta Aboriginal

1181 Martin v Osborn (1936) 55 CLR 367 at 375; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 196 and 198; Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 at [17]; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 [340]; CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [116] 1182 [1956] FICA 25; (1956) 94 CLR 470 at [8], with reference to Richard Evans & Co Ltd v Astley (1911) AC 674 at 687 and the judgment of Dixon, Williams, Webb, Fullagher and Kitto JJ in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 1183Spigelman CJ in Seltsam Pty Ltd v McGuinness (2000) NSWCA 262 at [135] and [136] 1184 Kiefel J in Tabet v Gett (2010) 240 CLR 537 at [111] 1185 [2016] FCA 1519 at [5] 1186 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 - 362 per Dixon J. See also G v H (1994) 181 CLR 387 at 399 per Deane, Dawson and Gaudron JJ; Evidence Act s 140(2)

188 | P a g e Community 1/ State of Victoria1187 (Yorta Yorta FC)identified the requisite strength of the evidentiary foundations for inferences leading to a negative determination must be very strong, given the:

irreversible consequences for Indigenous people of a finding, that long ago, their ancestors ceased to acknowledge traditional law and observe traditional customs"88

These matters should also be balanced having regard to the consequences of a native title determination for the world at large, given the in rem nature of such determinations,1189 as well as with regard to the challenges for claimant oral evidence discussed in Section 5 and the matters relevant to archival material considered in Section 6.

Relevant Considerations

> When drawing inferences regarding connection in native title determinations, Courts should consider the requisite strength of necessary supporting evidence to satisfy the balance of probabilities, having regard to the gravity such a finding has for the claimants and their identity, and the irreversible consequences of such a finding.

> However, such matters should be balanced with the consideration that, as a native title determination is a finding in rem, the consequences extend beyond the claim group as constituted.

> Equality of allocation of risk of error, and the comparative costs of being wrong and the rewards of being right, as discussed in Section 1.3, are also matters for consideration here.

> The strength of evidence required to support an inference on the balance of probabilities, whether in favour or to the detriment of a finding of maintenance of connection by the claim group, should be considered with regard to the disadvantages underlying claimant reliance on oral evidence and the challenges inherent in such evidence and the potential weaknesses in archival material.

Section 4 - Maintenance of connection 4.1 Gumcnm Principles

Selway J laid down the “Gumana Principles” in Gumana. These principles provide that “an inference that a tradition or custom has existed at least since the date of settlement,” can be drawn where the following general principles apply:1190

1187 [2001] FCA 45 1188lbid, at [63] and [85]. See similarly (although outside the native title context) in Shaw v Wolf ^998) 83 FCR 389 at [116]- [118] and [125] per Merkel J; Curthoys, Genovese and Reilly, op cit, at 212; Reilly (2000), op cit, at 467 1189 Wooten in McCalman and McGrath, op cit, at 20 1190 [2005] FCA 50 at [201], Followed in Griffiths v Northern Territory of Australia (2006) 165 FCR 300 at [578]-[580] per Weinberg J; in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No. 9) (2007) 238 ALR 1 at [341] per Lindgren J; in Sampi v State of Western Australia [2010] FCAFC 26 at [63]-[65] per Mansfield and North JJ; in AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [724]; in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132]-[134] per

189 | P a g e > Inferences of a tradition or custom existing since contact may be drawn where:

o there is a clear claim of the continuous existence of a custom or tradition that has existed at least since settlement; and

o this is supported by: • creditable evidence from persons who have observed that custom or tradition; and • evidence of a general reputation, that the custom or tradition had “always" been observed; and

o there is an absence of evidence to the contrary. > This does not mean that mere assertion is sufficient to establish the continuity of the tradition back to the date of settlement.

4.2 Proof of custom

In addition to the “Gumana Principles” adopted by Selway J referred to in subsection 4.1, His Honour also held that proof of “the existence of Aboriginal custom and Aboriginal tradition at the date of settlement and, indeed, the existence of rights and interests arising under that tradition or custom” could also be founded on the principles of “proof of custom.”1191 This can be evidenced in circumstances where actual usage in all time was impossible to prove by living testimony, by calling witnesses:

of middle or old age ... who state that, in their time, usually at least half a century, the usage has always prevailed. That is considered, in the absence of countervailing evidence, to show that usage has prevailed from all f/me.1192

Related inferences in native title matters identified by Lindgren J in Harrington-Smith on behalf of the Wongatha A/o 91193 include:______> 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).

There are a number of relevant considerations in relation to when inferences of proof of custom, retrospective continuance and attribution may be drawn.1194

Bennett J; and in Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 5) [2016] FCA 752 at [28] per McKerracher J 1191 [2005] FCA 50 at [199] - [201]. Followed in Griffiths v Northern Territory of Australia [2006] FCA 903 at [578] - [580] and [642] per Weinberg J; in Bennell v State of Western Australia [2006] FCA 1243 at [457] per Wilcox J; in AB (deceased) on behalf of the Ngarla People v State of Western Australia (No 4) [2012] FCA 1268 at [724] per Bennett J; in Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [132] per Mortimer J; and in Narrier v State of Western Australia [2016] FCA 1519 at [315] per Mortimer J 1192 Hammerton v Honey (1876) 24 WR 603 at 604 per Jessel MR. See also Brocklebank v Thompson [1903] 2 Ch 344 at 350; and New Windsor Corporation v Mellor [1975] Ch 380 at 386 and 391 1193 [2007] FCA 31 at [342] per Lindgren J 1194 Ibid, at [330] (with reference to Gleeson J in Mason v Tritton (1994) 34 NSWLR 572 at 574), [341], [342], [344] and [345]

190 | P a g e Relevant Considerations

> The shorter the period that has to be covered, the better.

> Careful consideration should be given to the practice or activity and the frequency or rarity of its occurrence as observed. In this regard:

o Observable conduct such as “[ajvoidance of the use of the names of deceased people, in-law avoidance, [and] not marrying people within certain skin groups” could found the basis for such inferences.

o Conduct, such as hunting or fishing, as the exercise of a traditional right is equivocal, because such activities are so natural to common occupation rather than necessarily to traditional law and custom.

> Whether Aboriginal people generally or a specific group were observed.

> Whether the Aboriginal people observed were transient or more settled in the claim area, and what conclusions may be drawn from observations at one place about presence elsewhere.

> The circumstances of earlier times in so far as they are known.

> The general probabilities.

4.3 Preponderance and weight of the available evidence and the absence of evidence to the contradictory

Cases both before and since Gumana have emphasised the need for both a preponderance and weight of available evidence, and an absence of evidence to the contrary, for the purposes of inferring connection to and presence of Aboriginal people in the claim area at sovereignty.1195 Where the available evidence, on the balance of probabilities, supports a finding that one of the key elements of connection is missing, this will be sufficient to negate any favourable inference.1196 But where there is evidence to the contrary, this is not automatically fatal to the drawing of a positive inference, provided that evidence is considered with all other evidence as a whole on the balance of probabilities. For example, such evidence need not preclude an inference in favour of maintenance of connection by the claim group where the evidence to the contrary only amounts to speculation.1197

1195 Ward v State of Western Australia (1998) 159 ALR 483 at 514 per Lee J; Olney J’s judgments in Yarmirr v Northern Territory of Australia (No 2) [1998] FCA 771 at [88] and [98] and Wandarang, Alawa, Marra and Ngalakan Peoples v Northern Territory of Australia [2000] FCA 923 at [66]; Daniel v State of Western Australia [2003] FCA 666 at [428] per RD Nicholson J; Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472 at [110] per Mansfield J; Griffiths v Northern Territory of Australia [2006] FCA 903 at [577] per Weinberg J; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [347] per Lindgren J; Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [95] per Mansfield J 1196 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [115] - [117] per Barker J 1197 Croft on behalf of the Barngarla Native Title Claim Group v State of South Australia [2015] FCA 9 at [92] and [703] - [709] per Mansfield J

191 (Page However, absence of evidence to the contrary is not sufficient for the drawing of positive inferences in relation to connection in native title determinations. Consistent with the matters discussed in subsection 1.3, the drawing of favourable inferences is also subject to there being “a proper foundation” to do so based upon “the best evidence available.”1198 1199Notwithstanding the evidentiary difficulties (in the absence of statutory presumptions), “the Court may only draw reasonable inferences, that is to say inferences reasonably drawn from facts proved in the proceeding.”1109

Accordingly, inferences have not been able to be drawn in favour of claimants where there is:

> A “complete lack of evidence.”1200

> A lack of consistency of indigenous evidence.1201

> Only fragments of evidence.1202

> Unsystematic evidence which does not “rise above surmise ... [or] conjecture."1203

Indeed, negative inferences, such as that the relevant group likely to have existed at sovereignty has collapsed and been replaced by a new society of people, may be drawn in circumstances where there is a lack of probative evidence.1204

Again consistent with the matters discussed in subsection 1.3, inferences must always be founded on the matters required for the proof of native title, such as of the existence of a normative system of laws and customs. Matters which are irrelevant to such matters will not suffice as a foundation for a valid inference in support of a positive native title determination,1205 although such inferences may be drawn from “subsidiary matters” which provide evidential support for findings in relation to the relevant society and its normative system of laws and customs, such as “proof of the existence of songs about the sea [which] is capable of showing that there were rules about the use of the sea even though the proof of the songs themselves is not proof of the law or custom.”1206

Relevant Considerations

> Inferences in favour of connection having been maintained in a native title claim must be supported by the preponderance and weight of evidence, and an absence of evidence to the contrary.

1198 De Rose v State of South Australia [2002] FCA 1342 at [570] per O’Loughlin J. Upheld on appeal by Wilcox, Sackville and Merkel JJ in De Rose v State of South Australia [2003] FCAFC 286 at [259]; See also Bodney v Bennell [2008] FCAFC 63 at [152] per Finn, Sundberg and Mansfield JJ; and Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [80] per Wilcox, French and Weinberg JJ 1199 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [348] per Barker J 1200 Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [120] per Madgwick J 1201 Jango v Northern Territory of Australia [2006] FCA 318 at [504] per Sackville J 1202 Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [619] per Jagot J. Upheld in Wyman on behalf of the Bidjara People v State of Queensland [20'\ 5] FCAFC 108 1203 Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 15 at [81] and [84] per Jessup J. Upheld on appeal in Sandy on behalf of the Yugara People v State of Queensland [20M] FCAFC 108 1204 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [295], [423], [430] and [432] per Barker J 1205 Sandy on behalf of the Yugara People v State of Queensland (No 3) [2015] FCA 15 at [152] and [153] per Jessup J; Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [619] per Jagot J 1206 Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26 at [77] per Mansfield and North JJ

192 | P a g e Relevant Considerations

> Where there is evidence to the contrary, competing interpretations and inferences should be assessed according to a weighting of their asserted supporting facts, on the balance of probabilities.

> Notwithstanding any lack of evidence to the contrary, inferences must be reasonably drawn, which will only occur where:

o There is support for such an inference from the evidence as a whole.

o “A proper foundation” to do so having regard to relevant, probative and cogent evidence of sufficient detail and depth to support the inference, drawn from the best evidence available.

o A basis for the inferential conclusion on the balance of probabilities.

> Proper foundations to draw inferences must be drawn from positive evidence of the continued existence of a normative society which has maintained connection to the claim area substantially uninterrupted since sovereignty through the observation and acknowledgement of traditional laws and customs, or subsidiary matters which assist in drawing inferences about a maintained existence of a normative society.

> A lack of evidence or evidence that falls short of matters adequate to draw a valid inference in favour of native title claimants may found the basis for drawing a negative inference regarding maintenance of connection.

4.4 Inferential reasoning regarding relevant points in time

Occupation of and the observance of traditional laws and customs in the claim area by ancestors of the claim group at sovereignty may be difficult to prove by direct evidence, particularly where settlement of an area or meaningful contact with Europeans came some time subsequent to sovereignty. However, these matters may be inferred from:1207

> Records of settler observations. > Geographic features, such as the extent to which the area is fertile and well-watered. > Archaeological evidence. > Expert evidence of connection between those who occupied the claim area at European settlement and the Aboriginal peoples who occupied those areas at sovereignty. > Oral evidence of older claim group members who had had contact with claim group members who lived according to traditional law and custom prior to a significantly earlier point in time.

1207 Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] 1606 FCA at [25] per Olney J; Daniel v State of Western Australia [2003] FCA 666 at [428] and [429] per RD Nicholson J; Lardil Peoples v State of Queensland [2004] FCA 298 at [102] per Cooper J

193 I P a g e Dowsett J’s judgment in Gudjala People (No 2) v Native Title Registrar1208 provides two methods for inferring the maintained observance of traditional laws and customs between sovereignty and the point in time when direct evidence becomes available (that is, when contact with Europeans was sufficient for the development of the archive, or the time from which experiences are relayed down to living witnesses). These are as follows:1209

Method Process

Reference to This method is directed at demonstrating continuity and connection historical records through reference to actual events. Records of events are drawn upon to support the inference that, as settlement has not affected the laws and customs, they probably align with pre-sovereignty laws and customs, simply because the group clearly existed shortly thereafter and has continued since.

This method is only available where “the continuous history of the claim group since the assertion of British sovereignty is well-known.”

Examination and Where there is an absence of any recorded continuous history of the comparison of a society, an alternate approach is to establish continuity by inference society and its laws through examination and comparison of the societies and their laws and and customs at customs at two or more points in time. multiple points in time This requires a consideration of whether there is sufficient similarity between the societies to suggest the society at the later point in time is a manifestation of the society at the earlier point in time, and that its laws and customs have been derived from that earlier society, and by further inference, a relevant connection of such matters to pre-sovereignty.

Other considerations that may be relevant to an inference of whether a normative society continued to exist according to its traditional laws and customs between sovereignty and a later date when archival and other records came into existence include:

1208 [2009] FCA 1572 1209 Ibid, at [30] - [32]

194 | P a g e > The extent to which there was contact between indigenous and non-indigenous people in that period and any resultant dislocation.1210

> Whether “the constitutional status and elaborate nature of the rules in question make it improbable that the system arose in the relatively short period between sovereignty and the time of the witnesses’ ‘old people’.”1211

> Whether oral evidence of the claim group members confirms they received instruction about laws and customs from their grandparents, having regard to the likely timing that those grandparents of the most senior witnesses would have received comparable instructions.1212

> If contemporary evidence establishes contemporary normative rules, from which the Court may “draw inferences about the content of the traditional laws and customs at sovereignty” and that “such a normative rule existed at sovereignty.”1213 1214

A further factor that Courts should consider when carrying out these assessments is in relation to permissible change and adaptation in native title rights and interests. In this regard, Black CJ in Yorta Yorta FC noted the need to assess evidence beyond:

the historical snapshot of adventitious content, which may in any event reveal little or nothing of a process of adaptation and change then taking place. It may well be necessary to have regard to events over a long period if misconceptions about adaptation and change are to be avoided.'*214

Relevant Considerations

> Occupation of and observation of traditional laws and customs by ancestors of the claim group members in the claim area can be inferred from records of settler observations, favourable geographic features, archaeological and other expert evidence and the oral evidence of older claim group members who had contact with their forebears who lived according to traditional law and custom prior to a significantly earlier point in time.

> Inferences of continuity between sovereignty and the point in time from when direct evidence becomes available may be based upon historical records where available, or where not available, based on an examination and comparison of the claim group at different points in time, where both methods indicate no significant change to traditional laws and customs.

> Other considerations relevant to such inferential reasoning include:

1210 State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186 at [2] per Dowsett J; Rubibi Community v State of Western Australia [2001] FCA 607 at [79] per Merkel J 1211 Sampi on behalf of the Bardi and Jawi People v State of Western Australia [2010] FCAFC 26 at [65] per Mansfield and North JJ 1212 Neowarra v State of Western Australia [2003] FCA 1402 at [336] per Sundberg J; Griffiths v Northern Territory of Australia [2006] FCA 903 at [584] per Weinberg J 1213 AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [724] per Bennett J 1214 [2001] FCA 45 at [59]

195 | P a g e Relevant Considerations

o The likelihood of disruption due to intervening events.

o The improbability of recent invention of laws and customs having regard to their constitutional status and elaborate nature.

o Oral evidence that shows a chain of instruction dating back connection to an area dating back multiple generations beyond the living claimants.

o Contemporary evidence of contemporary normative rules (having regard also to the proof of custom factors discussed in subsection 4.2).

> Caution should be exercised not to draw inferences based on “an historical snapshot of adventitious content,” but based on evidence which spans a sufficiently long period to assess adaptation and change.

4.5 Genealogical evidence

Difficulties of proof of membership of community and that such difficulties should not afford a reason to deny the existence of native title, was recognised by Brennan J (as His Honour then was) in Mabo.1215 Proof of biological descent as an element of evidence of connection raises various challenges, given the need to trace lineage decades prior to the keeping of genealogical records. For this reason, a narrow or technical approach to proof of biological descent back to sovereignty should be avoided.1216 The Courts have identified a number of relevant considerations regarding inferences of genealogical connections.

Relevant Considerations

> The probability of intervening events that would break the relevant biological links.1217

> The extent to which this can be traced by the claimants over multiple generations.1218

> The breadth of the spread of links asserted by claim group members.1219

> Corroborative historical material, similarities of ethnography and similarities with documented ritual practices recorded elsewhere.1220

1215 (1992) 175 CLR 1 at 51 -52 1216 Mason v Tritton (1994) 34 NSWLR 572 at 588 per Kirby P; Yarmirr v Northern Territory of Australia (No 2) [1998] FCA 771 at [21] per Olney J; Griffiths v Northern Territory of Australia [2006] FCA 903 at [583] per Weinberg J 1217 Mason v Tritton (1994) 34 NSWLR 572 at 588 per Kirby P 1218 Yarmirr v Northern Territory of Australia (No 2) [1998] FCA 771 at [88] per Olney J 1219 Ward v State of Western Australia (1998) 159 ALR 483 at 533 per Lee J 1220 Rubibi Community v State of Western Australia [2001] FCA 607 at [158] per Merkel J; Griffiths v Northern Territory of Australia [2006] FCA 903 at [583] per Weinberg J

196 | P a g e Relevant Considerations

> Evidence of community membership including self-identification and community recognition, birth and residence records, and evidence of the continuing operation and vitality of descent rules.1221

4.6 Geographic boundary evidence

Care should be taken in drawing inferences adverse to a native title claim merely due to difficulties of proof regarding the geographic boundaries of a claim area. This was acknowledged by Brennan J in Mabo/222 and more recently by RD Nicholson J in Daniel v State of Western Australia/223 who held that “[t]he problems of proof dictate that boundaries need not be proven precisely or with absolute accuracy.”1224 The Courts have identified a number of relevant considerations regarding inferences of boundaries of a determination area.

Relevant Considerations

> The use of the area and its surrounds, proximity to other parts of the claim area, and the availability of resources in the area.1225

> Consensus or otherwise amongst the claim group and consistency or otherwise of claim group evidence with ethnographic and historical data.1226

> From the weight afforded to the evidence as a whole.1227

4.7 Special considerations applicable to overlapping claims

Drawing inferences in favour of a positive determination will require additional considerations in areas of overlapping and competing claims. The Courts have identified a number of relevant considerations relevant to drawing inferences in favour of or to the detriment of respective overlapping groups.

Relevant Considerations

> The extent to which the asserted rights and interests and the observed conduct and behaviour of the competing claim groups have a normative content.1228

1221 Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 at [229], [232], [233] and [239] per Dowsett J 1222 (1992) 175 CLR 1 at 51-52 1223 [2003] FCA 666 1224 Ibid, at [113], with reference to Yarmirr v Northern Territory of Australia (No 2) (1998) 82 FCR 533 at [97]-[98] per Olney J and State of Western Australia v Ward [2000] FCA 191 at [202] per Beaumont and von Doussa JJ 1225 Yarmirr v Northern Territory of Australia (No 2) (1998) 156 ALR 370, [97]-[98] per Olney J; State of Western Australia v Ward [2000] FCA 191 at [262] per Beaumont and von Doussa JJ ; Bodney v Bennell [2008] FCAFC 63 at [175] per Finn, Sundberg and Mansfield JJ 1226 Banjima People v State of Western Australia (No 2) [2013] FCA 868 at [295], [296] and [316] per Barker J 1227 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [202] per Barker J 1228 AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268 at [283], [314] and [936] to [938] per Bennett J

197 | P a g e Relevant Considerations

> Whether the existence of adjacent areas of native title determinations or claims, particularly any broader cultural bloc involved, may found inferences that are favourable or otherwise to respective claim groups.1229

> Whether the Court can infer areas of shared country will depend on whether asserted rights and interests in specific areas are compatible such that competing interests can co-exist, or are irreconcilable.1230

Section 5 - Claimant oral evidence Whilst no category of evidence starts with any presumptions of reliability, accuracy or superiority,1231 the Courts have consistently held in native title matters that the evidence of claim group members in relation to their traditional laws and customs is “of the highest importance. All else is second order evidence.”1232 This approach puts the Court in the position to reconsider a number of challenges to other forms of evidence as discussed in Sections 6 and 7, and acknowledge and address cultural bias across competing modes of evidence.1233

In this regard, there will be cases in which “the direct evidence of witnesses is of a detail and depth, that is, a quality, that enables the Court to reasonably infer, on the basis of the direct Aboriginal evidence and reputation in the relevant Aboriginal community," that the matters relevant to proof of connection are made out.1234 However, claimant evidence may be deprived of weight where it does not cover all of the matters the subject of other evidence.1235

In considering inferences that may be drawn from the oral evidence of native title claimants, the Court should have regard to the significant cultural influences on Aboriginal and Torres Strait Islander people that, if misinterpreted, raise issues of credibility.1236 The Court should be “cognisant of the linguistic, cultural and historical factors that can adversely impact upon Indigenous witness evidence, and, to the extent the law provides, exercise its powers to ameliorate that impact.”1237

Where these factors are not given sufficient account in the trial process, Aboriginal people may feel uncomfortable, resentful, fearful, overwhelmed or offended; not be adequately understood or able to

1229 Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899 at [706], [707] and [709] per Mansfield J 1230 Ibid, at [710] 1231 Narrier v State of Western Australia [2016] FCA 1519 at [404] per Mortimer J 1232 Yarmirr v Northern Territory of Australia (No. 2) (1998) 82 FCR 533 at [560]; De Rose v State of South Australia [2002] FCA 1342 at [318] and [351]; De Rose v State of South Australia [2003] FCAFC 286 at [264] - [265]; Sampi v State of Western Australia [2005] FCA 111 at [48]; Jango v Northern Territory [2006] FCA 318 at [287] - [288]; Sampi v State of Western Australia [2010] FCAFC 26 at [57]; Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No. 2) [2010] FCA 643 at [100]; Bularnu Waluwarra & Wangkayujuru People v State of Queensland (No. 3) [2014] FCA 528 at [149]; Narrier v State of Western Australia [2016] FCA 1519 at [318] 1233 Strelein (2000), op cit 1234 CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [313] per Barker J 1235 Neowarra v State of Western Australia [2003] FCA 1402 at [41] per Sundberg J 1236 Mykyta, op cit, at 121 1237 Byrne, op cit, at 11

198 | P a g e convey their point of view and/or understand what is happening; feel the subject of injustice; and may be treated unfairly or unjustly.1238

Issue Relevant Considerations

Difference of The Courts should be alert for possible misunderstandings of and by language and non- witnesses where: verbal . > Anglo-Australian English is not their first language. communication > Miscommunications may arise due to the stressful nature of the Court.

> There are differences of cultural significance of non-verbal communications.

Where there are doubts about a witness’ ability to express him or herself in English, witnesses should be permitted to give their evidence in their first language.1239

This may require the assistance of interpreters1240 or anthropologists, who may assist claimant witnesses to provide a full and coherent testimony in circumstances they are otherwise unaccustomed to,1241 and assist the Court with the meaning and significance of what Aboriginal witnesses say and do.1242

Avoidance of eye Courts should be conscious that: contact and > Indigenous witnesses may avoid of eye contact with Counsel or the silences Judge, as a matter of respect rather than as a sign of dishonesty.

> Indigenous witness testimony may involve what seem to be extended periods of silence or an unwillingness to answer, possibly due to:

o A lack of support for the proposition put.

o Feelings of embarrassment or shame regarding their ability to respond.

o A belief that they have already sufficiently responded.

In such circumstances:

1238 Judicial Commission of New South Wales, op cit, at 2206 1239 De Rose v State of South Australia [2002] FCA 1342 at [252] per O’Loughlin J 1240 Connolly, op cit, at 205; Neate in Horrigan and Young, op cit, at 288 - 290; Supreme Court of Queensland, op cit, at 98 - 101; Judicial Commission of New South Wales, op cit, at 2309 1241 Jango v Northern Territory of Australia [2006] FCA 318 at [292] per Sackville J; Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [474] per Jagot J 1242 Jango v Northern Territory of Australia [2006] FCA 318 at [89] per Sackville J; Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [478] per Jagot J; CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204 at [119] per Barker J

199 | P a g e Issue Relevant Considerations it is vital that no-one in the court allows any culturally-determined assumptions about what they believe looks trustworthy and what does not to unfairly mislead or influence their assessment of the credibility or trustworthiness of an Aboriginal person.'243

Accordingly, Courts should exercise caution in drawing inferences based on an assessment of candour according to Western preconceptions of such matters.

Limits on rights or Knowledge in relation to traditional laws and customs and regarding country abilities to speak within a claim group may culturally be the subject of an “information economy,”12431244 and only certain persons may have the knowledge and authority to speak in relation to certain matters.1245 This is because:

laws and customs are part of a knowledge system in which information and knowledge is restricted and decentralised for the protection and preservation of those same laws and customs.'246

Courts should therefore have due regard to whether a witness is subject to cultural restrictions on his or her rights or abilities to speak on a certain topic, or to speak on such matters in front of certain audiences.

Again such matters should be properly considered, to ensure inferences are not improperly drawn regarding a witness who is inappropriately assessed as being evasive in their responses.

However, this may not always be the reason for a reluctance or inability to share information - and an inference may otherwise be drawn that the detail is simply not known having regard to all the evidence.1247

Contrasting The reception of oral evidence in the Court should be done in a manner information vigilant for potentially inherent challenges for indigenous witness’ testimony exchange in the adversarial system. Courts should remain conscious that indigenous methods, and witnesses may be accustomed to: suggestibility, > More indirect and gradual approaches where personal questions are gratuitous only asked when some understanding has been established. concurrence and scaffolding > Narrative methods to exchange of information.

1243 Judicial Commission of New South Wales, op cit, at 2306 1244 Neate in Horrigan and Young, op cit, at 283; Jango v Northern Territory [2006] FCA 318 at [294] per Sackville J 1245 Sutton in Finlayson and Fingleton, op cit, at 22 to 23 1246 Black, op cit, at 24 1247 Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 at [654] per Jagot J

200 (Page Issue Relevant Considerations

> Ways that avoid open disagreement or criticism.

Negative and “either-or" questioning can be particularly confusing and the answers therefore unreliable, and question and answer methods generally have the potential to be socially distressing for indigenous witnesses, as singling out an Aboriginal person for interrogation in front of an audience can cause shame.1248

Similarly, particularly in cross-examination, Courts should be mindful of the potential amongst indigenous witness responses of suggestibility, gratuitous concurrence or scaffolding. As Blackburn J noted in MHirrpum v Nabalco1249 that by virtue of Aboriginal peoples’ natural courtesy they may be:

easily "led" by a leading question, if by any possibility the terms of the question are such as to permit agreement with the answer suggested.'250

Caution should be exercised so that inferences are not drawn that misconstrue claim group members’ cultural approaches to:

> Showing deference to, and building rapport, with the questioner.

^ A means of conveying cooperation.

> Avoiding conflict.

> Signifying the futility of the interrogation process.

> Avoiding admitting a lack of understanding of the question.

> Just wanting to get things over and done with.

> Geared towards establishing or maintaining a relationship which is central to the exchange of information in Aboriginal culture.1251

Although again, this is a matter for consideration in light of all the evidentiary circumstances and may not always be the case.1252

1248 Judicial Commission of New South Wales, op cit, at 2312; Supreme Court of Queensland, op cit, at 90 and 104; Criminal Justice Commission, op cit, at 19, 20 and 23; Neate in Horrigan and Young, op cit at 291; ALRC (February 2006), op cit; Byrne, op cit, at 4 to 5 1249 (1971) 17 FLR 141 1250 Ibid, at 179 1251 Supreme Court of Queensland, op cit, at 90 to 92 and 94; Judicial Commission of New South Wales, op cit, at 2312; Fades, op cit; Criminal Justice Commission, op cit, at 21 to 22, 27 and 51; Flynn and Stanton, op cit; Kerr, op cit; Mykyta, op cit, at 123 1252 Jango v Northern Territory of Australia [2006] FCA 318 at [298] per Sackville J

201 | P a g e Issue Relevant Considerations

Different Courts should be aware that Aboriginal people often have different conceptions of conceptual approaches to communicating certain matters. In this regard: time and place > In relation to dates and times, Aboriginal oral history is often grounded in seeking to establish meaning for the past in the context of the present, with time having less relevance as behaviour and events “are described in a continuum in relationship to land sites.”1253

> In relation to directions and distances, as “Indigenous claimants may describe their country by reference to geographical and topographical features, to seasonal changes in the land or to shared boundaries with other groups spread across a swathe of land which cannot be identified in the way non-indigenous people might identify a fence line.'1254

Again, these differences should be accounted for in any assessment of a witness’ evidence so that matters of probability and weight are not unduly discounted for want of direct correlation with Western approaches to such matters.

Speech, hearing In some cases, Courts should be conscious: and memory > That a witness may suffer from medical ailments that result in impairment impairments to hearing and/or speech, and should ensure these matters are properly factored into the Court’s overall assessment of the witness’ evidence.

> Of the potential for limitations on the reliability of memory generally, particularly in relation to the potential for distortion over time and confirmation bias. The spoken word passed down from forebears “is at risk of being influenced and distorted in transmission through the generations, by, for example, fragility of recollection, intentional and unintentional exaggeration, embellishment, wishful thinking, justifiable sense of grievance, embroidery and self-interest.”1255

Having regard to all of the above, the epistemic conditions applicable to a native title trial may be entirely or partly non-conducive to the judicial acquisition of cultural concepts that should be factored

1253 Attwood, B. quoted in Gara in Paul and Gray, op cit, at 79; McGrath in McCalman and McGrath, op cit, at 255; 1254 Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 at [131] per Mortimer J 1255 Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 at [143] per Callinan J; Bennell v State of Western Australia [2006] FCA 1243 at [449] per Wilcox J; and Wyman on behalf of the Bidjara People v State of Queensland (No 2) 2013] FCA 1229 at [664] per Jagot J

202 | P a g e into the inferential process.1256 The Court may seek to alleviate such cultural and linguistic complications during its consideration of evidence and inferential reasoning, by applying one or more of the following mechanisms at its disposal under the Native Title Act, Federal Court of Australia Act 1976 (Cth) (FCA), the Federal Court Rules 2011 (Cth) (FCR), and the Evidence Act 1995 (Cth) (Evidence Act) to mitigate these challenges ahead of applying the Court’s inferential reasoning to such matters: > Orders in relation to restrictions on access to evidence applying to certain people (such as gender specific restrictions and suppression or non-publication orders), methods for giving evidence (including group evidence), locations for the giving of evidence (including on country), the giving of evidence wholly or partly in the narrative form, and generally for the purpose of taking into account the cultural or customary nature of the evidentiary subject matter.1257 > Ordering a National Native Title Tribunal inquiry in the event a more flexible approach might benefit the identification of factual evidence from the oral testimony of claimants.1258 > Having regard to matters that the Court sees, hears or otherwise notices during a demonstration or inspection.1259

Relevant Considerations

> The weight afforded claimant oral evidence and any inferences drawn from it should occur having regard to the primacy placed upon it in the case law, although still having regard to the evidence as a whole and the matters the subject of subsection 4.3.

> Consciousness of the limitations posed by the adversarial process for indigenous witnesses should be brought to bear on the inferential reasoning process. The Court should seek to draw inferences in a bi-cuitural context and ensure potential cultural biases do not colour inferences that may be drawn from the demeanour of an indigenous witness, including inferences of credibility or otherwise, having regard to the factors and issues referred to above.

> However, these matters are not absolute and should be considered, along with potential issues arising regarding reliability of memory, with regard to the whole of the evidence.

> Courts should consider whether alternative procedural methods and evidentiary approaches available to them under the Native Title Act, the Evidence Act, the FCA and the FCR would alleviate the complexities of claim group member oral evidence, and in particular, assist the Court in its overall inferential reasoning which might otherwise be impaired by such complexities.

1256 Connolly, op cit, at 194 and 198-199 1257 Federal Court Rules 2011 (Cth) 34.120(1), 34.120(2), 34.121, 34.123, 34.125, 34.127, Federal Court Act 1976 (Cth) ss 17(4), 37AF and 37AG, Evidence Act 1995 (Cth) ss 26 and 29(2) 1258 Native Title Act 1993 (Cth) s 138B 1250 Evidence Act 1995 (Cth) s 54

203 | P a g e Section 6 - Archival challenges Given the specific requirements of proof in native title matters, archival materials may feature significantly amongst the evidence. The mere fact that documents are located in the archives does not guarantee “their indisputable accuracy: their survival may have been haphazard, they may have been forged, and in themselves they may signify little.”1260

The application of the inferential process to archival evidence should be done conscious of the attributes of the archive that lend themselves to suggestions of discontinuity. In so doing, Courts should draw (or decline to draw) inferences from archival material having regard to issues of context and genre.

Issue Relevant Consideration

Context Because “Australian legal history, as far as cases involving Indigenous parties are concerned, is about absence, about what is not available”1261 (as discussed previously in subsection 1.2), any inferences drawn from archival material should be with regard to the broader contextual evidence, to mitigate gaps in the record.

Relevant considerations in this regard include:

> How the material fits with the wider literature applicable locally and to the broader region, and through educated guesses on the basis of this knowledge.

> Drawing on the various perspectives offered by the texts.

> The impacts of external factors such as Government policies and frontier cultures.

> Corroboration or contradiction by different forms of evidence (including oral evidence).1262

Expert witnesses can provide assistance to the Courts in applying inferential reasoning to the archive in light of these issues. Experts can provide the generalisations of knowledge that can influence the inferences drawn from the evidence, and expose the historiographic biases in the record by fleshing out competing versions of history and contextualising versions of historical arguments.1263

1260 Heydon, op cit, at 213 1261 Curthoys, Genovese and Reilly, op cit, at 141 1262 Choo in Toussaint, op cit, at 196; Neate, in Horrigan and Young, op cit, at 314 - 315; Choo and O’Connell in Paul and Gray, op cit, at 17 and 19-20; Gara, in Paul and Gray, op cit, at 73; Ginzberg, op cit, at 84 1263 Carter, op cit; Reilly (2000), op cit, at 472; Osiel, op cit, at 296; Skyring in Choo and Hollbach (2003), op cit, at 75

204 | P a g e Issue Relevant Consideration Filling the gaps can also be achieved through the analysis and weighting of the archive in the context of claimant oral evidence which addresses the same matters.1264

Genre Courts should also apply inferential reasoning to archive material having regard to the “genre,” or what an historical text was written for and a consciousness that the motivations and cultural and political perspectives of the recorder may influence what is recorded.1265

As an historical source document is only as objective as its author, the archival record may be invalidated by:

> Particular preconceptions, biases or prejudices of the author, such as ethnocentric views and historical assumptions in relation to the nature of Aboriginal people in areas of more intensive European occupation (the "settled south”).

> The level of qualifications of, and limits on understanding of language and culture, by the author.

> Limited exposure and access to information because of efforts to reveal very little to outsiders, or because observations are made at the wrong time or absent knowledge of what to look for.

> Possible ulterior motives by the author.

> An absence of pre-contact records, and post-contact records only documenting a situation that is disturbed by European influence.1266

This may result in the recorded behaviour of Aboriginal people being atypical due to the presence of the European observer, susceptible to error given differences in language, and a focus on discontinuities more so than continuities that may overstate the extent of loss of connection, Consequently, Courts should maintain consciousness of these genre factors in the inferential process, and ensure this is conducted through contextual analysis, reflexivity and familiarity with Aboriginal and Torres Strait Islander versions of history.1267

1264 Vincent and Land, op cit, at 21 1265 Rose in Paul and Gray, op cit, at 37 1266 Commonwealth v Yarmirr [1999] FCA 1668 at [351] per Merkel J; Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 at [58] per Black CJ; Rubibi Community v State of Western Australia [2001] FCA 607 at [37] per Merkel J; Daniel v State of Western Australia [2003] FCA 666 at [149] per RD Nicholson J; Risk v Northern Territory of Australia [2006] FCA 404 at [135] per Mansfield J; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 at [349] and [441] per Lindgren J 1267 Reilly (2006), op cit, at 464 - 465; Attwood (2005), op cit, at 159 - 160; Irvin, op cit, at 24; Hemming in Paul and Gray, op cit, at 54

205 (Page These matters may be considered with the benefit of specific statutory guidance. The Evidence Act provides that if a question arises about either the relevance of a document, or the application of a provision of that Act in relation to a document, the Court may examine the document and draw any reasonable inferences from it, including in relation the document’s authenticity or identity. In relation to questions about the application of a provision of the Evidence Act, the Court may also draw inferences from other matters from which inferences may properly be drawn.1268 These other matters may include oral evidence from a Party, which may be a basis for a finding of weight in relation to the document.1269

Guidance for the assessment of archival evidence in the inferential process is also available from the approaches taken in non-uniform evidence jurisdictions. Whilst these factors do not feature in the Evidence Act, they are useful references to have in mind for the discretionary processes of inference drawing and attaching weight.1270 Such matters are set out in the relevant considerations below, and whilst it involves some differing legal concepts, a judicious application of these principles to archival material may have similar effects to the application of the rule of contra proferentem to the interpretation of treaties by the Waitangi Tribunal in New Zealand, the Canadian Supreme Court and the US Supreme Court. The commonality amongst these matters is an interpretation of a document against its author “in order to equalise the asymmetry between those who had the power to write ... and those who did not.”1271

Relevant Considerations

> In light of the matters referred to in this Section and the approaches suggested therein, the Court should consider the authenticity and identity of archival material having regard to its abilities to draw inferences under Evidence Act, including matters of weight in the context of competing oral evidence.

> Other inferential considerations relevant to inferences that may be drawn from archival material include:

o All the circumstances from which inferences can reasonably be drawn regarding the accuracy of a statement.

o Whether the statement was made or information recorded in it was supplied, contemporaneously with the occurrence or existence of the relevant matters.

o Whether the statement maker or supplier of the information or keeper of the document had any incentive to conceal or misrepresent facts.

1268 Evidence Act 1995 (Cth) ss 58 and 183 1269 Itaoui v Yamaha Motor Finance Australia Pty Ltd [2009] NSWSC 1363 at [17] per Schmidt J 1270 Evidence Act 1929 (SA) s 34D; Evidence Act 1906 (WA) s 79D(1)(a) and (b) and s 79D(1)(c) to (g); Evidence Act 1977 (Old) s 102 1271 Johnson in Attwood, Chakrabarty and Lomnitz, op cit, at 109; Strelein (2000), op cit; Belgrave, op cit, at 235

206 | P a g e Relevant Considerations

o Whether the information was of a kind which was collected systematically or pursuant to a duty to do so.

o The reliability of the means of any applicable reproduction or derivation.

Section 7 - Expert witnesses Inferential reasoning may operate on expert evidence in native title claims, just as it may on the oral evidence of claimant witnesses.1272 Whilst the reasoning of both expert witnesses and the Court will involve the drawing of inferences, ultimately the inferences to be drawn is a matter for the Court.1273 The Court must therefore be put in a position to critique the manner in which the expert arrived at his or her conclusion, particularly having regard to the validity of the bases from which the expert infers,1274 the rigour brought to the interpretation of the primary materials, and the weight to be afforded the underlying factual premises.1275 Accordingly, expert reports and testimony must:

> Be “comprehensible and reach conclusions that are rationally based,” and reveal the process of inference that leads to the conclusions so it can be tested and its reliability judged.1276

> Identify the facts assumed to be true and which are asserted as justifying the opinion, so that these can be evaluated and measured against the evidence.1277

> Provide a sufficient basis to assess whether an expert’s inferences are drawn through the exercise of the relevant standard of study, training or experience.1278

> Not fall short of being valid inferences such as to be mere speculation, surmise or conjecture, or be lacking in objectivity.1279

Inferences that may be drawn from expert evidence will also be affected by the weight given to such matters in the context of claimant oral evidence and archival evidence,1280 and where contested by other expert evidence, by the extent to which the expert and claimant oral evidence coalesce.1281 A

1272 Narrier v State of Western Australia [2016] FCA 1519 at [391] Mortimer J 1273 As stated by Lee J during the course of the trial in Ward v State of Western Australia (1998) 159 ALR 483 and quoted by Choo in Kirkby and Coleborne, op cit, at 272 1274 Risk v Northern Territory of Australia [2006] FCA 404 at [468] - [470] per Mansfield J 1275 Ibid. Similarly, see Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [433] per Lindgren J 1276 Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370 at 389 - 390 per Anderson J 1277 HG v The Queen (1999) 197 CLR 414 at 428 per Gleeson CJ; Australian Securities and Investments Commission v Rich [2005] NSWCA 152 at [92], [105] and [132] per Spigelman CJ; Federal Court of Australia Expert Evidence Practice Note (GPN- EXPT), J L B Allsop, Chief Justice, 25 October 2016 1278 Neowarra v State of Western Australia [2003] FCA 1399 at [23] per Sundberg J; Daniel v State of Western Australia [2000] FCA 858 at [30] per RD Nicholson J; Jango v of Australia Northern Territory (No 2) [2004] FCA 1004 at [54] and [55] per Sackville J 1279 HG v The Queen (1999) 197 CLR 414 at 428 per Gleeson CJ; Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [28] and [413] to [430] per Lindgren J; Jango v of Australia Northern Territory (No 2) [2004] FCA 1004 at [11], [326] and [338] per Sackville J; Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625 at [122] per Dowsett J; Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374 at [132] per Madgwick J; Risk v of Australia Northern Territory [2006] FCA 404 at [121] to [123]. [132], [133], [137] and [138] per Mansfield J 1280 Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025 at [52] per Merkel J 1281 Bennell v State of Western Australia [2006] FCA 1243 at [789] per Wilcox J

207 | P a g e Court should also be vigilant for inferences drawn by experts by reference to archival material, without due regard for the matters the subject of Section 6 of these Inference Guidelines.1282

The Court should have regard to the potential for limits on definitive and fact-based conclusions, and the limitations on objectivity and accuracy, to affect the inferential reasoning processes of experts, when drawing its own inferences from them.

Issue Relevant Consideration

Definitive The types of expertise drawn upon in native title claims (such as anthropology and and fact- based history) is largely indeterminate and often contested, and the interpretations and conclusions conclusions may be provisional and inevitably subject to new perspectives and interpretations through later analyses.1283 As Former Chief Justice Mason has acknowledged, there “is no one ‘right’ view of Australian history.”1284

Accordingly, the Court may need to have regard to issues around indeterminacy and omitted variables, as discussed in subsection 2.5.

Similarly, the task of separating basel facts from opinions or interpretations by anthropologists may be complicated by the nature of the epistemology involved, which does not draw such a ready distinction and comprises “many strands of knowledge and interpretation.”1285

Objectivity Similarly, the types of expert witnesses called in native title claims have been susceptible to accusations of being, of their professional nature, less than objective. “The very nature of anthropological inquiry demands that practitioners engage in social relationships which necessarily result in the development of human relationships,” which may raise a perceived lack of objectivity.1286

Similarly, many historians have alleged the works of others are invalidated by subjective outlooks and personal agendas.1287

Trends in academic circles may also underpin claims of accuracy based upon purely theoretical considerations, and bias is a particular risk when considerations of loyalty to a “prevailing paradigm,” or to a client, intrude.1288

1282 Narrier v State of Western Australia [2016] FCA 1519 at [289] per Mortimer J 1283 Sherry, op cit, at 441; Byrnes, op cit, at 225; Attwood (2005), op cit, at 161; MacIntyre and Clark, op cit, at 13 1284 Mason in MacIntyre and Clark, op cit, at viii 1285 Palmer (2007), op cit, at 8, 10 and 14 1286 Ibid, at 5; Palmer (2011), op cit, at 6 1287 Inter alia, Blainey, op cit, at 49 and 125; Windschuttle, K. “Foreword,” in Dawson, op cit at vii and at ix, with particular reference to Reynolds (1996), op cit; Windschuttle (December 2000), op cit; Windschuttle (2002), op cit, at 5 - 7 and 400 - 404; Windschuttle (1996), op cit, at xi; Manne in Manne (2003), op cit, at 7; Attwood (2005), op cit, at 62, 81 and 122; Manne (2005), op cit, at 310; Reynolds in Manne (2003), op cit, at 135; Ryan in Manne (2003), op cit, at 255; Attwood in Attwood and Foster, op cit, at 176 and 181; Attwood (2005), op cit, at 180; Attwood (2003), op cit, at xiv and 74; Rowley, op cit, at viii; Evans (1999), op cit, at 10 and 18; Reynolds (1999), op cit, at 4, 124 and 244; Reynolds (1995), op cit, at 1 and 198 - 200; Reynolds (1996), op cit, at 245; Bagshaw, op cit, at 1; MacIntyre and Clark, op cit, at 218 1288 Crispin, op cit, at 9 and 13; Crispin, in McCalman and McGrath, op cit, at 173; Ray in McCalman and McGrath, op cit, at 110

208 (Page Issue Relevant Consideration

Error Factors which may make expert witness immunity from error unattainable include:

> The ubiquitousness of mistakes in methodology, logic and competence.

> The validity of propositions stated in relevant academic or professional literature will affect the validity of conclusions drawn.

> Subconsciously assumed intellectual constraints excluding consideration of relevant, perhaps decisive, issues.

> Partial and selective use of supporting material.1289

The Courts can meet such challenges in a number of ways, in addition to the matters referred to above regarding testing primary facts assumed or relied upon and the rigour of the process applied by the expert in drawing inferences. Such methods include:

> Having regard to overriding duties in retainers, clearly defined instructions to constrain the potential for advocacy, transparent and fulsome record keeping, and inclusion and consideration of adverse evidence in reports (not left to arise only on cross-examination).1290 > Assessing an expert’s willingness to state views contrary to the case of the party that called him or her, make appropriate concessions during cross-examination, circumspection about interpretative claims, and identification as speculation opinions offered on meagre data.1291 > Making use of the measures to mitigate difficulties in inferential reasoning, including particular sequencing for examination and cross-examination of multiple experts, joint reports, expert conferences, and “Hot Tub” conferencing and concurrent expert evidence,1292 or the conduct of an inquiry by the National Native Title Tribunal where findings of fact necessary to underpin inferential reasoning are particularly complex.1293

Relevant Considerations

> Expert reports must identify factual premises as well as transparency of the expert’s methodology. Failure to do so will hinder the Court’s ability to determine whether the opinion meets the relevant requirements of being wholly or substantially founded on specialised knowledge based on that person’s training, study or experience, as well as the Court’s ability to exercise its own judgment and draw its own inferences having regard to the supporting facts, assumptions and interpretive processes adopted.

1289 Crispin, op cit, at 7 and 10; Fulcher in Hiley, op cit, at 53 - 54; Fulcher, op cit, at 39 - 43 1290 Chalk, op cit, at 9 1291 Burke (2011), op cit, at 81 - 82, with reference to the approach of Dr Beckett, the anthropological expert witness called by the claimants in Mabo v State of Queensland [1992] 1 Qd R 78 1292 Federal Court Rules 2011 (Cth) 23.15 1293 Native Title Act 1993 (Cth) s 138B

209 | P a g e Relevant Considerations

> The validity of inferences drawn by expert witnesses should be tested and scrutinised using the same principles that judges themselves apply in their own inferential reasoning.

> There is room for error in the expert material relied on by the Courts in drawing inferences, particularly as a result of selective and partial use of material. Expert evidence may also be influenced by the subjectivities of the witness, including bias and political agendas arising from trends in academic circles, considerations of loyalty, human frailty and mere self-interest.

> The evidence of experts should be tested with regard to the use of accepted reliable methodologies, and a witnesses’ readiness to address alternative propositions and willingness to make concessions, before appropriately positive or negative inferences are drawn from such evidence.

> Alternative forms of evidence and fact-finding available under the FCR and the Native Title Act should be availed of if the circumstances of the expert evidence is creating material complexities for the Court in drawing its own inferences.

Section 8 - Tactical burden and adverse inferences The evidentiary process in native title trials may, like other forms of litigation, give rise to the drawing of adverse inferences in the circumstances set out in the “Rule in Jones v Dunkel,"'zgA and where the other party fails to fulfil a “tactical, evidentiary or provisional burden” of producing evidence in response to evidence led by the party that bears the onus of proof.12941295

The Rule in Jones v Dunkel provides that:

any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied upon as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.1296

1294 (1959) 101 CLR 298 1295 Ward v State of Western Australia (1996) 69 FCR 208 at 217; Moses Silver, ishmaei Andrews & Sammy Bulabul/Northern Territory/Ashton Exploration Australia Pty Ltd [2002] NNTTA 18 at [23]; Ashwin and Others on behalf of the Wutha People v West Coast Geoscience Pty Ltd and Another [2014] NNTTA 88 at [14] - [15] 1296 (1959) 101 CLR 298 at 308 per Kitto J and 312 per Menzies J; GvH (1994) 101 CLR 298 at [22]; Ho i/Porn?//(2001) 51 NSWLR 572 at [14]-[16]

210 I P a g e This rule:

> Applies where a party is “required to explain or contradict” something, or where evidence is given of facts “requiring an answer.”1287

> Is “particularly appropriately drawn when the facts are peculiarly within the knowledge of the silent party.”12971298

However, it “does not authorize the court to substitute suspicion for inference or to reverse the burden of proof or to use intuition instead of ratiocination.”1299

A “tactical, evidentiary or provisional burden” arises in circumstances where the Court may draw an inference in favour of the party who bears the onus of proof, and more readily accept the evidence of that party, where:

> A party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party.”1300

> “A plaintiff calls evidence sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in the plaintiff's favour” if the defendant does not call evidence of weight in response.1301

This “is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence,” but rather “because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.”1302

In addition to the matters generally applicable to considerations for these matters, there are some specific considerations in relation to these matters in native title claims.

Party Relevant Considerations

The Crown The Crown may be presumed “to have had knowledge of relevant circumstances and events concerning the burden of native title on its land at material times and to have had access to all relevant resources.”1303

When considering the tactical burden of the Crown, regard should be had to whether information might reasonably be assumed to be within the possession of the Crown by virtue of:

1297 Heydon, op cit, at 41, drawing on the words of Windeyer J. in Jones y Dunkel (1959) 101 CLR 298 at 322 and as quoted with approval in Fonterra Brands (Australia) Pty Ltd v Viropoulos (No 3) [2015] FCA 1050 at [103] 1298 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 639 per Fisher J 1299 Insurance Commissioner v Joyce (1948) 77 CLR 39 at 61 per Dixon J 1300 Weissensteiner v R (1993) 178 CLR 217 at [28] per Mason CJ, Deane and Dawson JJ 1301 Strong v Woolworths Limited (2012) 246 CLR 182 at [53] and [60] per Heydon J 1302 Ibid 1303 Ward v State of Western Australia (1998) 159 ALR 483 at 504 per Lee J

211 (Page Party Relevant Considerations > Its various roles and responsibilities carried out in relation to a claim area over the relevant time,

> Its functions and practices in developing and maintaining records of matters that occurred within its jurisdiction, and as the keeper of public archives.1304

These factors may be relevant to a Court’s willingness to more readily draw an inference in favour of continuity where claimant evidence provides a foundation for this through oral evidence, and the State does not produce archival evidence to the contrary.

Members of In relation to a claim group member who fail to testify or provide limited the Native testimony, adverse inferences may be drawn where the Court considers that Title Claim Group person’s views would likely have been of value in assessing relevant matters, particularly where such persons are of sufficient importance to be a member of the applicant.1305

Similar considerations may arise in relation to:

> A failure by any members of a generation of the claim group to give evidence.1306

> Instances where only some members of a claim group can testify in relation to specific aspects of the acknowledgement and observance of laws and customs.1307

However, consideration should also be given to whether any cultural issues, such as where a witness was concerned that his involvement in testimony ran contrary to the requirements of traditional laws and customs1308 (or other matters considered in Section 5), may explain such conduct, rather than the conduct being because such testimony would not be helpful to the claimants’ case.

Section 9 - Disregarding prior extinguishment In relation to proof of occupation of an area at the relevant time necessary to support a finding to disregard prior extinguishment under ss 47A or 47B of the Native Title Act, the Court need not be

1304 Burke v LFOT Pty Ltd (2002) 209 CLR 282 at [134] per Callinan J; Aboriginal and Torres Strait Islander Social Justice Commissioner, op cit 1305 De Rose v State of South Australia [2002] FCA 1342 at [11] per O’Loughlin J 1306 Ibid, at [15] 1307 Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31 at [959] and [960] per Lindgren J 1308 Narrier v State of Western Australia [2016] FCA 1519 at [223] per Mortimer J

212 | P a g e dissuaded from drawing inferences merely because these provisions have a significant effect.1309 In the absence of direct evidence, there are a number of considerations the Court may have regard to

Relevant Considerations

> The proximity of any claim group member’s residence to the area.1310

> The traditional way claim group members hunted and traversed the land around the area.1311

> Whether usage was traditional and likely to have occurred over a long period.1312

> Claim group members’ enthusiasm to range over the area.1313

1309 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 at [191] per Wilcox, French and Weinberg JJ 1310 Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472 at [313] per Mansfield J 1311 Ibid 1312 Rubibi Community v State of Western Australia (No 7) [2006] FCA 459 per Merkel J 1313 Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803 at [301] per Rares J

213 | P a g e Bibliography

Cases

AB (deceased) (on behalf of the Ngarla People) v State of Western Australia (No 4) [2012] FCA 1268; (2012) 300 ALR 193

Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group v State of Queensland (No 2) [2010] FCA 643; (2010) 204 FCR 1; (2010) 270 ALR 564

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73; (1996) 136 ALR 627

Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group v Northern Territory of Australia [2004] FCA 472; (2004) 207 ALR 539

Anderson v Wilson [2000] FCA 394; (2000) 97 FCR 453; (2000) 171 ALR 705

Aplin on behalf of the Waanyi Peoples v State of Queensland [2010] FCA 625

Arnotts Ltd v Trade Practices Commission [1990] FCA 660; (1990) 24 FCR 313; (1990) 97 ALR 555

Astway Pty Ltd v Council of the City of the Gold Coast [2008] QCA 73; (2008) 159 LGERA 335

Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764

Banjima People v State of Western Australia (No 2) [2013] FCA 868; (2013) 305 ALR 1

Bennell v State of Western Australia [2006] FCA 1243; (2006) 153 FCR 120; (2006) 230 ALR 603

Blatch v Archer ('l 774) 1 Cowp 63; (1774) 98 ER 969

Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84; (2008) 249 ALR 300

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334

Brocklebank v Thompson [1903] 2 Ch 344

Burrell v R [2009] NSWCCA 163; (2009) 196 A Crim R 199

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446; (2006) 229 ALR 136

Carr v Baker (1936) 36 SR (NSW) 301; (1936) 53 WN (NSW) 110

Caswell u Powell Duffryn Associated Collieries Ltd [1940] AC 152; [1939] 3 All ER 722

CG (Deceased) on behalf of the Badimia People v State of Western Australia [2015] FCA 204

Chapman v Luminis Pty Ltd (No 4) [2000] FCA 1121

Chapman v Luminis Pty Ltd (No 5) [2001 ] FCA 1106; (2001) 123 FCR 62

Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486; [1960] ALR 524

214 (Page Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118

Coles Supermarkets Australia Pty Ltd v Bright [2015] NSWCA 17

Collins v Department of Finance & Deregulation (No. 3) [2012] FMCA 860

Commonwealth Director of Public Prosecutions v Hart [2010] QDC 457

Commonwealth v Yarmirr [1999} FCA 1668; (1999) 101 FCR 171; (1999) 168 ALR 426

Commonwealth v Yarmirr [2001 ] HCA 56; (2001) 208 CLR 1; (2001) 184 ALR 113

Croft on behalf of the Barngarla Native Title Claim Group i/ State of South Australia [2015] FCA 9; (2015)325 ALR 213

Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1

Daniel v State of Western Australia [2003] FCA 666

Daniels v State of Western Australia [2000] FCA 858; (2000) 178 ALR 542

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; (2011) 277 ALR 611

Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)

Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150

De Rose v State of South Australia [2002] FCA 1342

De Rose v State of South Australia [2003] FCAFC 286

De Rose v State of South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290

Delgamuukw v British Columbia (1991) 79 DLR (4th) 185; [1991] 3 WWR 97

Delgamuukw v British Columbia (1993) 104 DLR (4th) 470; [1993] 5 WWR 97

Delgamuukw v British Columbia (1997) 153 DLR (4th) 193; [1997] 3 SCR 1010

Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528; (2014) 317 ALR 432

Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 3J [2014] FCA 709

Department of Health v Arumugam [1988] VR 319

Dilosa v Latec Finance Pty Ltd (No 2) [1966] 1 NSWR 259

Fonterra Brands (Australia) Pty Ltd v Viropoulos (No 3) [2015] FCA 1050

GvH (1994) 181 CLR 387; [1994] HCA 48; (1994) 124 ALR 353

Gale v Minister for Land & Water Conservation (NSW) [2004] FCA 374

Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336

Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155; (1982) 40 ALR 45

215 | Page GlaxoSmithKline Consumer Healthcare Investments (Ireland) (No. 2) Ltd vApotex Pty Ltd [2016] FCA 608

Graham on behalf of the Ngadju People i/ State of Western Australia [2012] FCA 1455

Griffiths v Northern Territory of Australia [2006] FCA 903; (2006) 165 FCR 300

Gudjala People (No 2) v Native Title Registrar [2009] FCA 1572; (2009) 182 FCR 63

Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457; (2005) 218 ALR 292

Hamlet of Baker Lake v Minister of Indian Affairs [1980] 1 FC 518; (1919) 107 DLR (3d) 513

Hammerton v Honey (1876) 24 WR 603

Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893; (2003) 130 FCR 424

Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 8) [2004] FCA 338; (2004) 207 ALR 483

Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1

HG v The Queen [1999] HCA 2; (1999) 197 CLR 414; (1999) 160 ALR 554

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168

Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470

Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39; [1948] 2 ALR 356

Irving v Penguin Books Ltd [2000] All ER (D) 523; [2000] EWHC QB 115

Itaoui v Yamaha Motor Finance Australia Pty Ltd [2009] NSWSC 1363

Jackson v Lithgow City Council [2008] NSWCA 312

Jango v Northern Territory of Australia (No 2) [2004] FCA 1004

Jango v Northern Territory of Australia [2006] FCA 318; (2006) 152 FCR 150

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; (1959) ALR 367

Jones v Great Western Railway Co (1931) 144 LT 194; (1930) 47 TLR 39

Kanak v National Native Title Tribunal (1995) 61 FCR 103; (1995) 132 ALR 329

Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532

Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899

Lander v State of South Australia [2012] FCA 427

Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v State of Queensland [2000] FCA 1548

Lardil Peoples v State of Queensland [2004] FCA 298

216 | P a g e Larrikin Music Publishing Pty Ltd 1/ EMI Songs Australia Pty Ltd [2009] FCA 799; (2009) 179 FCR 169; (2009)258 ALR 344

Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100

Lopes v Taylor ('l 970) 44 ALJR 412

Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474

Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352; [11952] ALR 308

Mabo v State of Queensland [1992] 1 Qd R 78

Mabo v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1; (1992) 107 ALR 1

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Malec vJC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638; (1990) 94 ALR 206

Manly Council v Byrne [2004] NSWCA 123

Martin v Osborn [1936] HCA 23; (1936) 55 CLR 367; [1936] ALR 261

Mason i/ Tritton (1994) 34 NSWLR 572

Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45; (2001) 110 FCR 244; (2001) 180 ALR 655

Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422; (2002) 194 ALR 538

MHirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; [1972-73] ALR 65

Mitchell v Minister for National Revenue [2001] 1 SCR 911

Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 3) [2010] FCA 1455

Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd (2013) 118 SASR 11; [2013] SASCFC 100

Nangkiriny v State of Western Australia [2002] FCA 660; (2002) 117 FCR 6

Narrier v State of Western Australia [2016] FCA 1519

National Australia Bank Ltd v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309

Neowarra v State of Western Australia [2003] FCA 1402

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349; (2015) 303 FLR 87

New Windsor Corporation v Mellor [1975] Ch 380; [1975] 3 All ER 44; [1975] 3 WLR 25

Nominal Defendant v Owens (1978) 45 FLR 430; (1978) 22 ALR 128

Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442; (2005) 220 ALR 431

217 | P a g e Nuhic v Rail & Road Excavations [1972] 1 NSWLR 204

O’Donnell v Reichard [1975] VR 916

Owners of Strata Plan 58041 v Temelkovski [2014] FCCA 2962

Pareroultja v Tickner (1993) 42 FCR 32; (2002) 117 ALR 206

Parle v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85

Payne v Parker [1976] 1 NSWLR 191

Plompv R [1963] HCA 44; (1963) 110 CLR 234; [1964] Qd R 170; [1964] ALR 267

Polivitte Ltd v Commercial Union Assurance Co Pic [1987] 1 Lloyd's Rep 379

Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; (1995) 16 ACSR 227

Quick v Stoland Pty Ltd (1998) 87 FCR 371; (1998) 157 ALR 315

R v Burdett (1820) 4 B & Aid 95; (1820) 106 ER 873

R v Hillier [2007] HCA 13; (2007) 228 CLR 618; (2007) 233 ALR 634

R v Jenkins; Ex parte Morrison (No 2) [1949] VLR 277; [1949] ALR 468

R v Merritt (1999) NSWCCA 29

R v Noonan [2002] NSWCCA 46; (2002) 127 A Crim R 599

R v Owen (1991) 56 SASR 397

R v Perry (No 4) (1981) 28 SASR 119

R v Tang [2006] NSWCCA 167; (2006) 65 NSWLR 681

R v Van der Peet [1996] 2 SCR 507; (1996) 137 DLR (4th) 289

Re J (1990) FCR 193

Re Thompson; Ex parte Nulyarimma [1998] ACTSC 136; (1998) 136 ACTR 9; (1998) 148 FLR 285

Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 [1966] ALR 270

Rhoden v Wingate [2002] NSWCA 165

Richard Evans & Co Ltd vAstley [1911] AC 674

Risk v Northern Territory of Australia [2006] FCA 404

Rubibi Community v State of Western Australia [2001 ] FCA 607; (2001) 112 FCR 409

Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025

Rubibi Community v State of Western Australia (No 7) [2006] FCA 459

Sampi v State of Western Australia (No 2) [2001] FCA 620

Sampi v State of Western Australia [2005] FCA 777

218 (Page Sampi on behalf of the Bardi and Jawi People u State of Western Australia [2010] FCAFC 26; (2010) 266 ALR 537

Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15; (2015) 325 ALR 583

Sandy on behalf of the Yugara People v State of Queensland [2017] FCAFC 108

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Shalhoub v Buchanan [2004] NSWSC 99

Shaw v Wolf Q 998) 83 FCR 113; (1998) 163 ALR 205

Shepherd i/ R [1990] HCA 56; (1990) 170 CLR 573; (1990) 97 ALR 161

Snake or Piute Indians v United States 112 F Supp 543 (1953)

Sodeman v R [1936] HCA 75; (1936) 55 CLR 192; [1936] ALR 156

Soulemezis y Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

State of Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316; (2000) 170 ALR 159

State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1; (2002) 191 ALR

State of Western Australia v Willis on behalf of the Pilki People [2015] FCAFC 186; (2015) 239 FCR 175; (2015)329 ALR 562

Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182; (2012) 285 ALR 420

Sydneywide Distributors Pty Ltd i/ Red Bull Australia Pty Ltd [2002] FCAFC 157; (2002) 234 FCR 549

Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; (2010) 265 ALR 227

Talka Matuwa Piarku (Aboriginal Corporation) RNTBC v State of Western Australia [2017] FCA 40

Taub v R [2017] NSWCCA 198

Taylor v Workers’ Compensation Regulator [2017] QIRC 006

Trade Practices Commission i/ Nicholas Enterprises Pty Ltd (No 2) [1979] FCA 51; (1979) 26 ALR 609

Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307

ULV Pty Ltd v Scott (1990) 19 NSWLR 190

Upper Chehalis Tribe v United States 155 F Supp 226 (1957)

Wacando \/ Commonwealth [1981] HCA 60; (1981) 148 CLR 1; (1981) 37 ALR 317

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Ward v State of Western Australia (1996) 69 FCR 208; (1996) 136 ALR 557

Ward v State of Western Australia (1998) 159 ALR 483

219 | P a g e Warrie (formerly TJ) (on behalf of the Yindjibarndi People) v State of Western Australia [2017] FCA 803

Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217; (1993) 117 ALR 545

Wik Peoples v State of Queensland [1996] HCA 40; (1996) 187 CLR 1; (1996) 141 ALR 129

Wilkes v State of Western Australia [2003] FCA 156

Wotton v State of Queensland (No 5) [2016] FCA 1457

Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229

Wyman on behalf of the Bidjara People v State of Queensland [2015] FCAFC 108; (2015) 235 FCR 464; (2015)324 ALR 454

Yankunytjatjara/Antakirinja Native Title Claim Group v State of South Australia [2006] FCA 1142

Yarmirr v Northern Territory of Australia (No 2) (1998) 82 FCR 533; (1998) 156 ALR 370

Legislation

Evidence Act 1906 (WA)

Evidence Act 1929 (SA)

Evidence Act 1977 (Old)

Evidence Act 1995 (Cth)

Evidence Act 1995 (No 25) (NSW)

Evidence Act 2001 (Tas)

Evidence Act 2008 (Vic)

Evidence Act 2011 (ACT)

Evidence (National Uniform Legislation) Act (NT)

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Native Title Act 1993 (Cth)

Native Title Amendment (Reform) Bill 2011 (Cth)

Native Title Amendment (Reform) Bill (No. 1) 2012 (Cth)

Native Title Amendments (Reform) Bill 2014 (Cth)

Native Title Amendment Bill 2011 (Cth) Explanatory Memorandum

220 [Page Monographs

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Attwood, B., D. Chakrabarty and C. Lomnitz Public Culture, tlThe Public Life of History” volume 20 no. 1, Duke University Press, New York, 2008

Attwood, B and S.G. Foster, Frontier Conflict - The Australian Experience, National Museum of Australia, Canberra, 2003

Attwood, B and F Magowan (eds), Telling Stories - Indigenous history and memory in Australia and New Zealand, Bridget Williams Books, Wellington, 2001

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Burke, P. (ed), The Skills of Native Title Practice - Proceedings of a Workshop, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1995

221 [Page Cane, S. Pila Nguru: The Spinifex People, Fremantle Arts Centre Press, 2002

Carr, E.H. What is History?, Vintage Books, New York, 1961

Choo, C. and S Hollbach (eds), History & Native Title, University of Western Australia Centre for Western Australian History, 2003

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Evans, RJ. Lying About Hitler- History, Holocaust and the David Irving Trial, Basic Books, New York, 2002

Finlayson, J.D. and J.S. Fingleton (eds), Proof and Management of Native Title, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 1994

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Horrigan, B. and S. Young (eds), Commercial Implications of Native Title, Federation Press, Sydney, 1997

Kirkby, D. and C. Coleborne, Law, history, colonialism - The reach of empire, Manchester University Press, Manchester, 2010

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MacIntyre, S (ed), The Historian’s Conscience - Australian historians on the ethics of history, Melbourne University Press, Carlton, 2004

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Manne, R. Whitewash - On Keith Windschuttle’s Fabrication of Aboriginal History, Black Inc. Agenda, Melbourne, 2003

222 (Page McCalman, I. and A. McGrath (eds), Proof and Truth - The Humanist as Expert, Australian Academy of Humanities, Canberra, 2003

McQueen, H. Suspect History - Manning Clark and the Future of Australia’s Past, Wakefield Press, Adelaide, 1997

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Journal articles

Attwood, B. "The Law of the Land or the Law of the Land' - History, Law and Narrative in a Settler Society" (2004) 2 History Compass 1

Attwood, B. “The Stolen Generations and genocide: Robert Manne’s In denial: the Stolen Generations and the Right” (2001) 25 Aboriginal History 153

Bartlett, R. “Humpies not houses, or, the denial of native title: a comparative assessment of Australia’s museum mentality,” (2003) 10 Australian Property Law Journal 1

Belgrave, M. “Looking Forward - Historians and the Waitangi Tribunal” (2006) 40(2) New Zealand Journal of History 230

Bennett, D. “The Cubillo and Gunner Cases” [November 2000] Quadrant 35

Black, M. “Developments in Practice and Procedure in Native Title Cases,” (March 2002) 13 Public Law Review 16

Blainey, G. “Native fiction” (April 2003) 21(8) The New Criterion http://www.newcriterion.com/archive/21/apr03/blainey.htm (accessed on 23 January 2008)

Brunton, R. “Genocide, the “Stolen Generations” and the “Unconceived Generations”” [May 1998] Quadrant 19

Byrne, J. “Indigenous Witnesses and the Native Title Act 1993 (Cth)” (June 2003) 2 National Native Title Tribunal Occasional Papers Series

Byrnes, G. “By Which Standards? History and the Waitangi Tribunal: A Reply” (2006) 40(2) New Zealand Journal of History 214

Carter, A. “The Definition and Discovery of Facts in Native Title: The Historian’s Contribution” [2008] FedLawRw 13 httD://www.austlii.edu.au/au/iournals/FedLawRw/2008/13.html (accessed 25 November 2017)

Case, N. “Tide of History or Tsunami? The Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors” (1999) 4(17) Indigenous Law Bulletin 17

Choo, C. and S. Hollbach, “The Role of the Historian in Native Title Litigation” (1999) 4(17) Indigenous Law Bulletin 7

224 | P a g e Ciolek M. “Exploring Connection: Judicial Interpretation of Section 223(1 )(b) of the Native Title Act 1993 (Cth)” (2006) 10 Australian Indigenous Law Reporter 14

Clement, C. “Historians and Native Title: A Personal Perspective” (December 2000) 91 Australian Historical Association Bulletin 86

Clendinnen, I. “The History Question - Who Owns the Past?” (2006) 23 Quarterly Essay 1 de Graaff, B. “The Difference between Legal Proof and Historical Evidence. The Trial of Slobodan Milosevic and the Case of Srebrenica” (2006) 14(4) European Review 499

Douglas, L. “The Didactic Trial: Filtering History and Memory into the Courtroom” (2006) 14(4) European Review 513

Duff, N. “What’s needed to prove native title? Finding flexibility within the law on connection” (June 2014) 35 Australian Institute of Aboriginal and Torres Strait Islander Studies Research Discussion Paper

Eades, D. “Telling and Retelling Your Story in Court: Questions, Assumptions and Intercultural Implications” (2008) 20(2) Current Issues in Criminal Justice 209 http://www.austlii.edu.au/au/iournals/CICrimJust/2008/26.html (accessed on 13 November 2017)

Edmond, G. "After Objectivity: Expert Evidence and Procedural Reform" [2003] SydLRevQ

Edmond, G. “Thick Decisions: Expertise, Advocacy and Reasonableness in the Federal Court of Australia” (2004) 74 Oceania 190

Epstein, L. and G. King “The Rules of Inference” (2002) 69 U. Chi. L. Rev. 1

Evans, R.J. “History, Memory and the Law: The Historian as Expert Witness” (October 2002), 41(3) History and Theory 326

Farrell, R. Hot Tubbing’ anthropological evidence in native title mediations, National Native Title Tribunal Research Unit, June 2007

Finn, P. “Law and History in Four Parts” [2005] ANZLH E-Journal 239

Flynn M. & Stanton S, “Trial by Ordeal: The Stolen Generation in Court” (April 2000) 25(2) Alternative Law Journal 75 http://www.austlii.edu.au/au/iournals/AltLawJI/2000/29.html (accessed 10 November 2017)

French, R. "Lifting the burden of native title some modest proposals for improvement" [2008] FedJSchol 18, http://www.austlii.edu.au/au/iournals/FedJSchol/2008/18.html (accessed 6 August 2017)

Fulcher, J. “The Wik Judgment, Pastoral Leases and Colonial Office Policy and Intention in NSW in the 1840s” (1998) 4 Aust J Leg Hist 33

Ginzberg, C. "Checking the Evidence: The Judge and the Historian" (Autumn 1991) 18(1) Critical Inquiry 79

Griffiths, T. "The Frontier Fallen” (March 2003) Eureka Street http://www.eurekastreet.com.au/articies/0303qriffiths.html (accessed on 23 January 2008)

Hamer, D. “The Civil Standard of Proof Uncertainty: Probability, Belief and Justice” (1994) 16 Sydney Law Review 506

Hausler, K. “Indigenous perspectives in the courtroom” (January 2012) 16(1) The International Journal of Human Rights 51

225 | P a g e Hodgson, D.H. “The Scales of Justice: Probability and Proof in Legal Fact-Finding,” (1995) 69 Australian Law Journal 731

Hughston, V. and T. Jowett “In the native title ‘hot tub’: expert conferences and concurrent expert evidence in native title,” (August 2014) 6(1) Land, Rights, Laws: Issues of Native Title

Irvin, Z. "A Comparative Analysis of Historical Assumptions in the Yorta Yorta and Single Noongar Decisions” (December 2006/January 2007) 6 (24) Indigenous Law Bulletin 24

James, G. F. “Relevancy, Probability and the Law” (September 1941) 29(6) California Law Review 689

Johnson, M. "Honest acts and dangerous supplements: Indigenous oral history and historical practice in settler societies” (2005) 8(3) Postcolonial Studies 261

Josephson, J.R. “On the Proof Dynamics of Inference to the Best Explanation” (2001) 22 Cardozo L Rev. 1621

Kennedy, R. “Stolen Generations testimony: trauma, historiography, and the question of truth” (2001) 25 Aboriginal History 116

Kerr, S. “Gratuitous Justice; a Review of the Queensland Criminal Justice Commission’s Report into Aboriginal Witnesses in Criminal Courts” (Sept 1996) 3(84) Aboriginal Law Bulletin 12 http://www.austlii.edu.au/cqi-bin/viewdoc/au/iournals/AboriqinalLawB/1996/62.html (accessed 10 November 2017)

Kirby, M. “Alex Castles, Australian Legal History and the Courts” (2005) 9^) Australian Journal of Legal History 17

Litchfield, J. “Mabo and Yorta Yorta: Two Approaches to History and Some Implications for the Mediation of Native Title Issues” (2001) 3 National Native Title Tribunal Occasional Papers Series

Mack, K. “Teaching Evidence: Inference, Proof and Diversity,” (2000) 11 Legal Educ Rev 57

McIntyre, G. “Native Title Rights after Yorta Yorta” [2002] JCU LawRw 9 http://www.austlii.edu.aU/au/iournals/JCULawRw/2002/9.html (accessed 9 January 2018)

Mykyta, S. “Losing Sight of the Big Picture: the Narrowing of Native Title in Australia,” (2005) 36(1) Ottawa Law Review 93

Nesson, C. R. "Reasonable Doubt and Permissive Inferences: The Value of Complexity” (1979) 92 Harv. L. Rev. 1187

Orford, A. “Commissioning the Truth”, (2006) 15 Colum. J. Gender & L. 851

Palmer, K. “Anthropologist as Expert in Native Title Cases in Australia” [2011] Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit

Palmer, K. “Anthropology and Applications for the Recognition of Native Title” (2007) 3(7) Land Rights, Laws: Issues of Native Title

Pardo, M.S. “The Political Morality of Evidence Law” (2007) 5(2) International Commentary on Evidence 3

Pardo, M.S. and R. J. Allen “Juridical Proof and the Best Explanation,” (May 2008) 27(3) Law and Philosophy 223

Re, L. “Oral v Written Evidence: The Myth of the “Impressive Witness”” (December 1983) 57 The Australian Law Journal 679

226 | P a g e Read, P. “The Stolen Generations, the historian and the court room” (2002) 26 Aboriginal History 51

Reilly, A. “How Mabo Helps Us Forget” (2006) 6 Macquarie Law Journal 25

Reilly, A. “The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title” (2000) 28 Federal Law Review 453

Reilly, A. and A. Genovese “Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence” (2004) 3 Indigenous L.J. 19

Reynolds, H. “The Mabo Judgment in Light of Imperial Land Policy” (1993) 16(1) UNSW Law Journal 27

Reynolds, H. and J. Dalziel, “Aborigines and Pastoral Leases - Imperial and Colonial Policy 1826- 1855” 1996 19(2) UNSW Law Journal 315

Ritter, D. "The “Rejection of Terra Nullius” in Mabo: A Critical Analysis” (1996) 18(5) Sydney Law Review 5

Ritter, D. "Whither the Historians? The Case for Historians in the Native Title Process” 1999 4(17) Indigenous Law Bulletin 4

Roberts, A. “Using Archaeology as evidence” (February 2001) 26(1) Alternative Law Journal 41

Sansom, B. “The Brief Reach of History and the Limitations of Recall in Traditional Aboriginal Societies and Cultures” (2006) 76 Oceania 150

Selway, B. “The Use of History and Other Facts in the Reasoning of the High Court of Australia” (2001) 20(2) University of Tasmania Law Review 130

Shaw, B. "Expert Witness or Advocate? The Principle of Ignorance in Expert Witnessing” (October 2001) 2(11) Land, Rights, Laws: Issues of Native Title

Sherry, S. “The Indeterminacy of Historical Evidence” (1995-1996) 19 Harv. J.L. & Pub. Policy 437

Strelein, L. “A Captive of Statute” (2009b) 93 Reform (Native Title) 48

Strelein, L. “The ‘Courts of the Conqueror’: the Judicial System and the Assertion of Indigenous Peoples’ Rights” [2000] AulndigLawRpr 22 http://www.austlii.edu.au/cqi- bin/viewdoc/au/iournals/AUIndiqLawRpr/2000/22.html (accessed 14 September 2017)

Stuckey, M. “Not by Discovery but by Conquest: The Use of History and the Meaning of ‘Justice’ in Australian Native Title Cases,” (2005) 34 Comm. L. World. Rev. 19

Van Krieken, R. "Is Assimilation Justiciable? Lorna Cubillo and Peter Gunner v Commonwealth" (2001) 23 Sydney L Rev. 239

Van Krieken, R. "Law's Autonomy in Action: Anthropology and History in Court" (2006) 15 Social and Legal Studies 574

Vincent, E. and C. Land "Silenced Voices” (October - November 2003) 67 Arena Magazine 19

Williams, J. “Truth, Reconciliation and the Clash of Culture in the Waitangi Tribunal,” [2005] ANZLW E-Journal 234

Wilson, R.A. “Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia” (August 2005) 27(3) Human Rights Quarterly 908

227 | P a g e Windschuttle, K. “The myths of frontier massacres in Australian history, Part II - The fabrication of the Aboriginal death toll” [November 2000] Quadrant http://svdnevline.com/Massacres%20Part%20Two.htm (accessed 23 January 2008)

Windschuttle, K. “The myths of frontier massacres in Australian history, Part III - Massacre stories and the policy of separatism” [December 2000] Quadrant http://svdnevline.com/Massacres%20Part%20Three.htm (accessed 23 January 2008)

Young, S. “The Trouble with Tradition’: Native Title and the Yorta Yorta Decision” [May 2001] 30 Western Australian Law Review 28

Zariski, A. "The truth in judging: testimony (Fifty bare-arsed Highlanders)" (February 1996) 21(1) Alternative Law Journal at 27

Newspaper articles and media releases

Cormack, B, “PM missed native title chance: Keating,” The Australian, 25 February 2013 http://www.theaustralian.com.au/national-affairs/indiqenous/pm-missed-native-title-chance- keatinq/news-storv/77c649885e9e2c51990b493c73c2205a (accessed 6 August 2017)

Cullen, S “Government to speed up Native Title Claims” ABC News, 7 June 2012, http://www.abc.net.au/news/2012-06-06/qovernment-to-speed-up-native-title-claims/4055290 (accessed 6 August 2017)

Dreyfus, M, J. Macklin and G Gray, “New Australian Law Reform Commission inquiries announced,” media release, 5 June 2013, http://www.formerministers.dss.qov.au/13054/new-australian-law-reform- commission-inquiries-announced/ (accessed on 19 September 2017

Dreyfus, M. and J Macklin “Terms of reference for native title law inquiry announced” media release, 3 August 2013, http://www.formerministers.dss.qov.au/12978/terms-of-reference-for-native-title-law- inquirv-announced/ (accessed 19 September 2017)

Hope, D. “Smokescreen nullius,” Weekend Australian, 25 - 26 February 2006, at Inquirer 22

Karvelas, P, “Julia Gillard has missed a 'golden opportunity' to reform native title, indigenous leaders say,” The Weekend Australian, 6 June 2012, http://www.theaustralian.com.au/national- affairs/indiqenous/iulia-qillard-has-missed-a-qolden-opportunitv-to-reform-native-title-indiqenous- leaders-sav/news-storv/563cbb7e15df13a2300dbcc1 ffe106e6 (accessed 6 August 2017)

Conference papers

Bagshaw, G. “Anthropology and Objectivity in Native Title Proceedings” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001

Chalk, A. “Anthropologists and Violins - A lawyer’s view of expert evidence in native title cases” Native Title Conference: Expert Evidence in Native Title Court Cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6 - 7 July 2001

Crispin, K.J. “Of Auguries and Experts” International Institute of Forensic Studies Experts and Lawyers: Surviving in the Brave New World Conference, Broome, Western Australia, 16-19 October 2005

Kirby, M. "Expert Evidence: Causation, Proof and Presentation” International Institute of Forensic Studies Inaugural Conference, Prato, Italy, 3 July 2002,

228 [Page http://www.hcourt.qov.au/publications/speeches/former/speeches-bv-the-hon-michael-kirbv (accessed 14 September 2017)

Neate, G. “Management of native title cases by the Federal Court - does this affect the anthropologist’s role?” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001

North, Justice A.M. and T. Goodwin, “Disconnection - the Gap between Law and Justice in Native Title: A Proposal for Reform” 10th Annual Native Title Conference, Melbourne, 4 June 2009

Pundik, A. "Epistemology & The Law of Evidence: Four Doubts about Alex Stein’s Foundations of Evidence Law,” The Foundations of Evidence Law conference, Hebrew University of Jerusalem, 6 November 2006

Rares, S. “Using the “Hot Tub” - How Concurrent Expert Evidence Aids Understanding Issues” Judicial Conference of Australia Colloquium, 12 October 2013

Reynolds, H. “Among Historians,” Race, Nation, History Conference, National Library of Australia, Canberra, 30 August 2008

Rigsby, B. “Representations of Culture and the Expert Knowledge and Opinions of Anthropologists” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001

Shaw, B. "Bringing the numinous into the witness stand” Expert evidence in Native Title Court cases: Issues of truth, objectivity and expertise, Australian Institute of Aboriginal and Torres Strait Islander Studies Native Title Research Unit Conference, Adelaide University, 6-7 July 2001

Sperling, H.D. "Expert Evidence: The Problem of Bias and Other Things” Supreme Court of New South Wales Annual Conference, Terrigal, 3-4 September 1999

Walter, A and Z Sanderson, “Amendments to the Native Title Act - recent changes and the process for future reforms” Australian Institute of Aboriginal and Torres Strait Islander Studies National Native Title Conference, Townsville, 7 June 2017

Reports

Aboriginal and Torres Strait Islander Social Justice Commissioner, 2009 Native Title Report, Australian Human Rights Commission, Sydney, 2009 https://www.humanriqhts.qov.au/sites/default/files/content/social iustice/nt report/ntreport09/pdf/ntr c h3.pdf (accessed on 6 August 2017)

Australian Law Reform Commission, Connection to Country: Review of the Native Title Act 1993 (Cth) Final Report, ALRC Report 126, April 2015

Australian Law Reform Commission, Review of the Native Title Act 1993 Discussion Paper (DP 82), October 2014

Australian Law Reform Commission, Review of the Native Title Act 1993 Issues Paper (IP 45), March 2014

Australian Law Reform Commission, Uniform Evidence Law (ALRC Report 102), 8 February 2006 https://www.alrc.qov.au/publications/5.%20Examination%20and%20Cross- Examination%20of%20Witnesses%20/examination-witnesses (accessed 10 November 2017)

229 | P a g e Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR), Chega! The Report of the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR), April 2006 http://www.cavr-timorleste.org/en/cheqaReport.htm (accessed 6 March 2010)

Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts, Goprint, Brisbane, June 1996

Hiley, G. RFD QC and Dr K Levy RFD, Native Title Claims Resolution Review, prepared for the Attorney-General in response to the Terms of Reference for the “Review of the claims resolution process in the native title system,” 31 March 2006

Human Rights and Equal Opportunity Commission, Bringing them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Sydney, April 1997

Orentlicher, D. Independent study on best practices, including recommendations, to assist states in strengthening their domestic capacity to combat all aspects of impunity, United Nations Commission of Human Rights E/CN.4/2004/ 88 27 February 2004, http://daccess-dds- nv.un.orq/doc/UNDQC/GEN/G04/113/55/PDF/G0411355.pdf?QpenElement (accessed 6 March 2010)

Royal Commission on Aboriginal Peoples, Looking Forward Looking Back, Report of the Royal Commission on Aboriginal Peoples, Indian and Northern Affairs, Canada, October 1996 http://www.collectionscanada.qc.ca/webarchives/20071211050944/http://www.ainc- inac.qc.ca/ch/rcap/sq/sq4 e.html#19

Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future. Summary of the Final Report of the Truth and Reconciliation Commission of Canada, 2015 http://www.trc.ca/websites/trcinstitution/File/2015/Honourinq the Truth Reconciling for the Future July 23 2015.pdf (accessed 20 November 2017)

Bench books

Judicial Commission of New South Wales, Equality Before the Law Benchbook (Release 10), July 2016 https://www.iudcom.nsw.qov.au/wp- content/uploads/2016/07/Equalitv before the Law Bench Book.pdf#paqe23 (accessed 11 November 2017)

Supreme Court of Queensland, Equal Treatment Benchbook (2nd ed) http://www.courts.qld.qov.au/ data/assets/pdf file/0004/94054/s-etbb.pdf (accessed 11 November 2017)

Supreme Court of Western Australia, Equal Justice Bench Book, http://www.supremecourt.wa.qov.aU/equaliustice/C/chapter aboriginal people.aspx?uid=669-9495- 04-2416 (accessed 11 November 2017)

International instruments and determinations

Inter-American Commission on Human Rights, Monsignor Oscar Arnulfo Romero Y Galdamez, El Salvador, Report No. 37/00, Case 11.481, April 13, 2000 http://www.cidh.orq/annualrep/99enq/merits/EISalvador11.481a.htm# ftn147 (accessed 6 March 2010)

International Labour Organisation Convention on Indigenous and Tribal Peoples 1989 http://www.ilo.orq/dvn/normlex/en/f?p=NORMLEXPUB: 12100:0::NQ::P12100 ILO CODE:C169 (accessed on 20 September 2017)

230 (Page United Nations Commission on Human Rights, Updated set of principles for the protection and promotion of human rights through action to combat impunity (8 February 2005) http://www.derechos.orq/nizkor/imou/principles.html (accessed 24 August 2010)

United Nations Declaration on the Rights of Indigenous People, 61/295, 13 September 2007 http://www.un.orq/esa/socdev/unpfii/documents/DRIPS en.pdf (accessed 24 August 2017)

Internet

Commonwealth Attorney General’s Department Reforms to the Native Title Act 1993 (Cth) Options Paper, November 2017 https://www.aq.qov.au/Consultations/Documents/options-paper-proposed- reforms-to-the-native-title-act-1993.PDF (accessed 5 December 2017)

Commonwealth Attorney General’s Department, Review of the Native Title Act 1993 by the Australian Law Reform Commission Scope of Review, https://www.aq.qov.aU/Consultations/Documents/AustralianLawReformCommissionnativetitleinquiry/R eview%20of%20the%20Native%20Title%20Act%201993%20bv%20the%20Australian%20Law%20R eform%20Commission%20-%20scope%20of%20review.PDF (accessed on 6 August 2017)

Federal Court of Australia Expert Evidence Practice Note (GPN-EXPT), J L B Allsop, Chief Justice, 25 October 2016, http://www.fedcourt.qov.au/law-and-practice/practice-documents/practice-notes/qpn- expt (accessed on 5 November 2017)

Queensland Department of Natural Resources and Mines, Guidelines for preparing and assessing connection material for Native Title Claims in Queensland, November 2016, https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0003/108660/guide-preparing-assessing- connection-material.pdf (accessed 17 June 2018)

South Australian Crown Solicitor’s Office, Consent Determinations in South Australia: A Guide to Preparing Native Title Reports, 2004, https://www.lqa.sa.qov.au/webdata/resources/files/Consent Determinations in SA A Guide to P reparinq Native Title Reports.pdf (accessed 17 June 2018)

Western Australian Department of Premier and Cabinet, Guidelines for the Provision of Connection Material, February 2012, https://www.dpc.wa.qov.au/lantu/MediaPublications/Documents/Guidelines- for-the-provision-of-connection-material-Feb-2012-FINAL.pdf (accessed 17 June 2018)

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