638. The Law of Evidence and Aboriginal Testimony about Customary Laws. The importance of Aboriginal evidence of Aboriginal customary laws has been stressed already, and is shown both by cases in Australian courts and by the experience of the Aboriginal Land Commissioner. But the rules of evidence, strictly applied, could preclude much Aboriginal evidence about their customary laws. Apart from restrictions as to the content of evidence (where non-experts are in no better position than experts) there is the more basic question whether traditional Aborigines would, under a strict application of the rules of evidence, be permitted to give ‘opinion’ evidence about their customary laws at all. It would be odd if the courts were to accept the opinions of outside experts, while declining to accept as expert the opinions of the Aborigines whose customs and traditions were at issue. Admittedly there is value in the systematic study and evaluation which an established discipline can provide. Not all traditional Aborigines are ‘learned in their law’. and there may be difficulties, for those who are, in speaking about aspects of the law which are not their particular responsibility. An outside expert may be able to provide a more comprehensive account, and an analytical framework within which the particular issue can be grasped. But to say that traditional Aborigines fully initiated into their laws are nonetheless not experts in the legal sense is difficult to justify. Yet that assumption has been made. In Milirrpum v Nabalco Pty Ltd it was assumed that the Aboriginal clan leaders who gave evidence were not experts. Objections to the admissibility of their evidence had to be dismissed on other, special, grounds. If this assumption reflects the common law, clearly some change is needed.
639. Rejection of Special Rules for Proof of Aboriginal Customary Laws. In some jurisdictions evidence of native custom and law is admitted notwithstanding the ordinary rules of evidence. However in Milirrpum v Nabalco Pty Ltd Justice Blackburn, while acknowledging ‘the unusual difficulties associated with the proof of matters of Aboriginal law and custom’, felt obliged to fit the evidence into the framework of ‘the rules of the law of evidence which the Court is bound to apply’. The difficulties were perhaps made greater by the rejection of overseas analogies. Discussing the rule in Angu v Attah and related material, Justice Blackburn said:
In my opinion this is a special field of the law of evidence, not part of the common law as it is understood in Australia: it is adapted to deal with a situation quite different from that which is before me in this case. The question before me is whether Australian law recognizes the native title which is asserted. On the other hand, the purpose of the rule in Angu v Attah and of the highly developed system of rules of which it forms a part, is to enable proof of the detailed matters of native law and custom to be given in courts which have the responsibility of applying such law and custom … on the assumption that the native law and custom is applicable to the matter before the court … In my opinion the special body of law known as the law of traditional evidence’ has no application to this case.
Despite statutory changes in some jurisdictions, this ‘special body of law’ continues to be relevant in a number of countries, and is by no means a relic of colonialism. In the only case to consider its application to Australia it was rejected out of hand. But Australian courts, both now and under the Commission’s recommendations, may well have to apply Aboriginal ‘law and custom in suits between subjects, or between a subject and the Crown’.
640. Aboriginal Experiential Evidence. It is usual to distinguish two ways in which Aborigines can testify about their customary laws: either in relation to a fact or situation within their immediate experience, or by expressing an opinion about customary law in more general terms. In some cases, at least, matters of customary law will be, or will be treated as, matters of fact. A person’s beliefs and perceptions at a particular time are essentially questions of fact. Within limits this would also be so with evidence of a member of an Aboriginal community, or for that matter an observer, of the beliefs and perceptions generally held by the community. As Justice Blackburn said in Milirrpum v Nabalco Pty Ltd:
No difficulty arose in the reception of the oral testimony of the Aboriginals as to their religious beliefs, their manner of life, their relationship to other Aboriginals, their clan organization and so forth. provided, first, that the witness spoke from his own recollection and experience, and secondly, that he did not touch on the question of the clan relationship to particular land or the rules relating thereto. No question of hearsay is at this stage involved: what is in question is only the personal experience and recollection of individuals.
641. Aboriginal Opinion Evidence. However, even if it were possible in principle it would be extremely laborious to attempt to generate from the personal experiences of a number of witnesses what the rule or custom is in a particular matter. In practice it is inevitable that Aboriginal witnesses with authority to speak on these matters will be asked to express their view in more general terms. Beyond a certain point, general statements about customary laws, and about their application in a particular case, would be classed as matters of opinion rather than fact, and would therefore be inadmissible unless some other exception to the opinion evidence rule applied.
‘Reputation’ evidence. One established exception to the hearsay rule may render admissible certain forms of evidence of customary law. This is the common law equivalent of s 32 of the Indian Evidence Act 1872, allowing ‘reputation’ evidence, that is, evidence as to statements by deceased persons relating to a ‘public right or custom’. It was as reputation evidence that the Aboriginal evidence in Milirrpum v Nabalco Pty Ltd was held admissible. Justice Blackburn considered statements that deceased relatives regarded specific land as belonging to a named clan. This, he held, was in reality a statement as to reputation and, because it affected a substantial number of people (members of that clan and others), it was a statement as to ‘public and general rights’. He rejected the argument that a pattern of particular statements of land-holding by different clans could not add up to a general reputation:
The group or community is the group consisting of all the people of all the clans who are plaintiffs … Once the rights asserted are seen as a complex of different but consistent rights, applicable to a whole community, being the group of clans who are the plaintiffs in the action, the apparent difficulty disappears. There is an identity between the community of’ people in which the reputation is alleged to be held, and the community of people which enjoys the right which the reputation seeks to establish … If it were practically possible for each witness to describe the total system applicable to all the people in the group, in one speech without interruption, the matter would be easier to see in its true light. Why should it make any difference that the reputation has to be established bit by bit … [T]here is apparently no English or American case like this, where the matter of public right sought to be proved is a complex totality of rights rather than a single right. But in my opinion the proper conclusion from that is not that there is no authority for the admission of reputation evidence in such circumstances, but that the situation is a new one and that the true rationale of the reputation principle allows, indeed requires, that it be applied.
In certain limited circumstances, therefore, evidence of statements about customary laws made by deceased Aborigines will be admissible as reputation evidence, under an exception to the hearsay rule. But in other cases such evidence will be inadmissible either as hearsay or as non-expert opinion evidence or both. The difficulty Justice Blackburn had in that case, in fitting the evidence into the established rules, demonstrates the problems posed by the present law. It perhaps also helps to explain the informality of much present practice.
Aborigines as ‘experts’. One obvious way of avoiding the difficulty would be to regard Aborigines as experts in their own customary laws. But, as has been seen, the assumption seems to be that Aboriginal evidence is to be distinguished from expert evidence for these purposes: in Milirrpum v Nabalco Pty Ltd they were described as ‘two kinds of witnesses’.