12.47 In a native title proceeding, claimants must provide evidence to establish the elements of native title—ie that they possess communal, group or individual rights and interests in relation to land or waters under traditional laws acknowledged and customs observed by them, and that, by those laws and customs they have a connection with the land or waters claimed. Compiling such evidence typically will require significant resources and the extensive use of experts. Typically, this will be a time-intensive process.
12.48 The establishment of native title under s 223 draws on a wide range of expert evidence:
The historical reality of an indigenous society in occupation of land at the time of colonisation is the starting point for present day claims for recognition of native title rights and interests. The determination of its composition, the rules by which that composition is defined, the content of its traditional laws and customs in relation to rights and interest in land and waters, the continuity and existence of that society and those laws and customs since colonisation, are all matters which can be the subject of evidence in native title proceedings. Such evidence can be given, most importantly, by members of the society themselves and also by historians, archaeologists, linguists and anthropologists.
12.49 Relevant experts may include, for example, historians, archaeologists, botanists, palaeontologists, cartographers, ethnomusicologists, and anthropologists. The importance of such expert evidence to claimants was noted by AIATSIS:
Anthropological evidence is often critical to native title claimants. It forms the basis for proving ‘the content of pre-sovereignty laws and customs and the continuous acknowledgement and observance of those laws’.
12.50 This expert evidence also has significant value to the Court. Vance Hughston SC and Tina Jowett have observed that expert evidence is of particular importance where the collective memory of a claim group does not extend prior to the assertion of sovereignty:
the expert evidence of anthropologists will most frequently be relied upon to overcome the inherent forensic difficulties in proving the content of pre-sovereignty laws and customs and the continuous acknowledgment and observance of those laws and customs down to the present day.
12.51 However, Hughston and Jowett identified several concerns with the use of expert evidence:
concerns have at times been expressed that expert evidence may be partisan or biased, possibly because experts are briefed by only one party and may have a long-standing association with a particular claim group;
there have been instances of experts giving expert opinion evidence about matters extending beyond their professional expertise;
expert evidence and anthropological reports may be highly technical and difficult to understand;
significant time may be required to take each expert through their evidence, particularly in an adversarial setting; and
the adversarial context may not provide the best way for an expert to assist the court, nor for the court to properly assess experts’ competing opinions.
12.52 Many of these concerns were echoed by stakeholders. Issues regarding expert evidence emerging through the ALRC’s consultations and in submissions included:
the limited availability of experts;
the possible disconnect between anthropological evidence and the legal tests necessary to establish native title; and
the potential for delays in proceedings resulting from conflicting expert evidence.
Availability of experts
12.53 There was significant and widespread concern among stakeholders about the availability of experts. The Cape York Land Council said:
There continue to be difficulties in engaging experts with sufficient expertise to undertake the necessary reports and other procedures in relation to connection requirements.
12.54 The Law Society of Western Australia noted:
the paucity of availability of Anthropological experts to assist in the preparation of claims and the presentation of the necessary ethnographic evidence to engage with the State in arriving at a consent determination or to present a case at trial. The Wongatha case effectively engaged all available Anthropological experts in the country. During the trial the expert for the State of Western Australia passed away and was unable to be replaced. Typically today (as has been the case since 1994), if an Anthropological expert is required, then long time periods need to be allowed to await the availability of the small number of experts who are available to perform the task.
12.55 The Federal Court of Australia also noted that ‘the limited number and availability of appropriately qualified expert anthropologists continues to be a significant source of delay’.
12.56 The limited availability of experts cannot be addressed through legislative reform. Some stakeholders suggested that there may be a need for further programs to train and develop anthropologists and other experts with native title expertise. Such programs could be modelled on, for example, the internship program of the Aurora Project.
Expert evidence and legal requirements
12.57 Anthropology and the law are distinct, specialised fields, each with their own specific methodology and terminology. Expertise in one field cannot necessarily be translated directly into the other field. David Martin has suggested:
Common anthropological ways of thinking and writing in materials contributed to debate within the discipline do not necessarily prove appropriate in the context of preparing ‘connection reports’ for native title litigation or mediation.
It is crucial that anthropologists and other experts understand the role of expert witnesses as per the Federal Court’s guidelines in order that their evidence is given due weight. A reading of the judgments, and practical experience, should encourage an interdisciplinary approach to these issues.
12.58 Dr Paul Burke noted a related problem occurring when the law adopts technical concepts, such as ‘society’, from anthropology, without necessarily adopting the theoretical framework surrounding those concepts. As a result, ‘once those concepts appear in legislation or judicial pronouncements the links to their original context is severed’.
12.59 The different expectations of the law and anthropology also emerge with respect to the time taken and methods used for anthropologists and other experts to conduct their research. Dr Kingsley Palmer has made the observation that:
The issue of the length of time an anthropologist needs to spend in the field and how long might be too long is a matter that has been addressed in other claims. In particular, the matter of the possible over-involvement of the anthropologist and a consequential loss of objectivity has been a matter for comment in a number of claims.
12.60 However, a lengthy research period, and the formation of close relationships with claim groups, may be seen by native title experts as an essential requirement of their work. Dr Palmer has noted:
a fundamental tenet of the anthropological method is some degree of immersion in the society being studied. This provides for an appreciation and comprehension of the nature of the social relationships and structures of the society that is unavailable to those whose experience of it is cursory and consequently superficial.
12.61 During consultations, it was suggested to the ALRC that there may be benefits in further developing guidance or training for anthropologists to assist them in presenting their expert evidence in a way that may be more readily accessible for native title proceedings. The ALRC considers that the development of such guidance or training may be a useful tool for strengthening and expediting native title litigation and consent determinations. By encouraging experts to prepare their evidence in a way that more directly corresponds to the legal process, there may be a reduction in the time needed for parties and the Court to consider this evidence, and less possibility of differences between the two fields to lead to confusion or misinterpretation.
12.62 Any such guidance or training would need to ensure that the independence of experts in native title proceedings was not compromised, and would need to recognise that an expert witness’s ‘paramount duty is to the Court and not to the person retaining the expert’. There may be a concern that any guidance or training would not account for variations that may exist between different anthropologists and different native title claim groups. This concern was expressed by NTSCORP:
NTSCORP understands there are substantial delays in the connection process and trying to find agreement on connection issues with the State and other parties. However, there are different experts and several ways of presenting expert evidence and this is often unique to each case. Prescribing the way or form this evidence should be presented would be unlikely to solve the problems of delay faced in native title claims. In NSW, much of the delay in the process is due to the State and respondent parties being unable or unwilling to specify their concerns with connection material.
12.63 The ALRC suggests that further consideration might be given to the development of training programs, which might be conducted through, for example, university anthropology courses or the Australian Anthropological Society.
Conflicting expert evidence
12.64 In the course of native title proceedings, there is potential for experts to provide conflicting evidence. This may occur, for example, where an expert retained for a state or territory party prepares evidence contradicting that of the expert witness for the claim group, or where multiple groups assert native title over the same area.
12.65 The conflicting expert evidence may result in increased time and complexity. The South Australian Government submitted:
The State does have some experience of situations where disagreement between (usually overlapping claimant) parties’ experts leads to the serial exchange of reports over extended periods of time, however, the Court has attempted to mediate agreement by case management conferences or conferences of experts where that assists. It is, perhaps an imperfect system, but the State cannot see a clear means to improve matters.
12.66 The Federal Court has a wide range of powers under the Federal Court Rules 2011 (Cth), allowing the Court to make a range of directions relating to expert evidence. These directions may include, for example, a direction that the experts confer, or a direction that experts be cross-examined and re-examined in any particular order or sequence. These powers provide a range of mechanisms for addressing the complexities that may arise when conflicting expert evidence is presented.
12.67 Expert conferences (in which experts meet to discuss and prepare a report stating their areas of agreement and disagreement) and concurrent expert evidence (in which experts present and respond to questions about their evidence together) may help avoid some of these concerns. Expert conferences and concurrent evidence may be particularly useful in cases where there is disagreement about, for example, claim group composition or the laws and customs of the group. AIATSIS noted the value of expert conferences and concurrent expert evidence:
These procedures allow experts to come together and discuss significant issues and present agreed and disputed issues to the court. This contributes to a significant reduction in court time.
12.68 The Federal Court noted that it has, in particular claims, facilitated case management conferences
at which the experts for the Applicant and State confer to identify the issues likely to be most contentious prior to the commencement of anthropological field work. The aim of these conferences is for the parties’ experts to discuss their knowledge of the relevant anthropological literature and related or neighbouring claims so that scarce research resources may be appropriately focused on areas of particular interest to the State, minimising the need for follow up research and reports.
12.69 The Federal Court also noted that it has
made orders that the experts confer under the supervision of a Registrar of the Court to identify those matters and issues about which their opinions are in agreement and those where they differ. These conferences have usually taken place in the absence of the parties’ lawyers and have been remarkably successful in narrowing connection issues, often resulting in agreement between the experts on all matters.
12.70 Several stakeholders in consultation expressed support for the use of court-appointed experts. Support for court-appointed experts may reflect the perceived advantages of an increased role for inquisitorial processes in native title proceedings, where a less adversarial approach may be appropriate. The potential value of court-appointed experts was noted by the Australian Human Rights Commission:
Significant time and expense is incurred in the collection of expert evidence. Courts are often faced with multiple and conflicting expert reports and testimony. A mechanism by which the court can deal with particular questions of fact, such as in respect of genealogy, by referring the question to one independent expert referee may therefore prove useful.
12.71 The decision to use a court-appointed expert may be more appropriately made on a case-by-case basis. The use of a court-appointed expert may be problematic, for example, in cases where there is significant dispute about facts relating to connection. The Federal Court has an existing power to make orders for the use of court-appointed experts under the Federal Court Rules 2011:
(1) A party may apply to the Court for an order:
(a) that an expert be appointed (a Court expert) to inquire into and report on any question or on any facts relevant to any question arising in a proceeding …
12.72 Given the Court’s existing powers for managing expert evidence, the ALRC considers that legislative reform regarding expert evidence in native title proceedings is unnecessary.
Western Australia v Ward (2000) 99 FCR 316, – (Beaumont and von Doussa JJ); Daniel v Western Australia  FCA 666 (3 July 2003) ; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1, .
Graeme Neate, ‘Resolving Native Title Issues: Travelling on Train Tracks or Roaming the Range?’ (Paper Presented at Native Title and Cultural Heritage Conference, Brisbane, 26 October 2009) 11.
Sampi v Western Australia  FCA 777 (10 June 2005) .
AIATSIS, Submission 70.
Willis on behalf of the Pilki People v Western Australia  FCA 714 (4 July 2014)  (North J).
Vance Hughston and Tina Jowett, ‘In the Native Title “Hot Tub”: Expert Conferences and Concurrent Expert Evidence in Native Title’ (2014) 6 Land, Rights, Laws: Issues of Native Title 1.
Hughston and Jowett refer to Jango v Northern Territory (2006) 152 FCR 150, –.
Hughston and Jowett refer to Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) (2003) 130 FCR 424, ; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1, –.
Hughston and Jowett, above n 73, 1–2.
Cape York Land Council, Submission 7.
Law Society of Western Australia, Submission 9. The Law Society referred in its submission to Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1.
Federal Court of Australia, Submission 40.
David Martin, ‘Capacity of Anthropologists in Native Title Practice. Report to the National Native Title Tribunal 2004’ (Anthropos Consulting Services, Canberra, April 2004) 6.
P Burke, Submission 33. See also Paul Burke, Law’s Anthropology: From Ethnography to Expert Testimony in Native Title (ANU E Press, 2011) 13; Kingsley Palmer, ‘Societies, Communities and Native Title’ (2009) 4 Land, Rights, Laws: Issues of Native Title.
Kingsley Palmer, ‘Anthropology and Applications for the Recognition of Native Title’ (2007) 3 Land, Rights, Laws: Issues of Native Title 1, 5.
Kingsley Palmer, ‘Anthropologist as Expert in Native Title Cases in Australia’ (AIATSIS, 2012) 5.
Federal Court of Australia, Practice Note CM 7: Expert Witnesses in Proceedings in the Federal Court of Australia, 4 June 2013 [1.3].
NTSCORP, Submission 67.
South Australian Government, Submission 68.
Federal Court Rules 2011 (Cth) rr 5.04(3), 23.15.
Ibid r 23.15(a).
Ibid r 23.15(i).
AIATSIS, Submission 70.
Federal Court of Australia, Submission 40.
Aboriginal and Torres Strait Islander Social Justice Commissioner, ‘Native Title Report 2009’ (Australian Human Rights Commission, 2009) 120.
For some concerns about the use of Court-appointed experts, see, for example, Justice Garry Downes, ‘Expert Evidence: The Value of Single or Court-Appointed Experts’ (Paper Presented at the Australian Institute of Judicial Administration Expert Evidence Seminar 2005, Melbourne).
Federal Court Rules 2011 (Cth) r 23.01.