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Drawing Inferences in the Proof of Native Title – Historiographic and Cultural Challenges and Recommendations for Judicial Guidance

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Drawing Inferences in the Proof of Native Title – Historiographic and Cultural Challenges and Recommendations for Judicial Guidance 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”............................................................................................................
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