18.08.2010
644. Authority to Speak on a Particular Matter. The notion of ‘authority to speak’ on a particular matter is of considerable importance in Aboriginal tradition, much more so, for example, than for Western law and culture. In Neate’s words:
When seeking information about specific areas of land it is necessary to ask those persons who are fully knowledgeable about the land and have special responsibilities towards it. It is not sufficient just to ask any person about his or her or somebody else’s country. That person may not know enough to be able to give a full account of it, or may know but feel unable to do so in the absence of other people standing in certain relations to him or her: or he or she may know but wish to defer to another person who is more senior in the hierarchy of knowledge or is one of the other sex and so is a proper person to ask.[733]
This is a comment on the land claim experience, but it is equally true for other questions of Aboriginal customary laws. It raises two matters: first, the need to identify correctly those witnesses who have both knowledge and authority to speak on a particular matter, and second, the importance of group evidence in terms both of the accuracy and the completeness of evidence adduced from an Aboriginal witness.
645. Identifying Witnesses With Authority, to Speak. It is most desirable that decisions involving Aboriginal customary laws be based as far as possible on statements that are accurate and are made by those with authority to make them. Customary rules based on matters such as kin relationships, traditional status, sex and age dictate the knowledge that may be possessed, the authority to speak and the range of people to whom that information may be conveyed. An obvious and important example are those rules distinguishing ‘men’s business’ from ‘women’s business’.[734] However the matter is more complex than this. The proof of traditional marriage provides a good example of the complexities that can arise, and the importance of selecting the appropriate witnesses. Aborigines themselves are generally in no doubt as to whether a relationship is ‘a passing fancy’, ‘just renting’, or a proper traditional marriage.[735] Whether a traditional marriage exists will depend on whether it can be shown that by the rules and practices of the relevant group the relationship is regarded as a marriage. In Police v Ralph Campbell[736] the views of the girl herself and her parents were sought in order to establish that there was a traditional marriage. Casual liaisons may sometimes develop into what are ultimately regarded as traditional marriages.[737] Obviously there may be disagreements in such cases. In addition:
Disputes about matters other than the recognition of marriage (ceremonial matters, money matters, etc) may be standing in the way of the recognition of the marriage, in cases where neither side actually opposes the union itself so much as the grouping associated with one half of it.[738]
Where this is so, care needs to be taken in ascertaining whose views matter and who has authority to speak. It is not sufficient simply to rely on the opinion of any one person or persons of one sex. Adequate research and preparation is necessary to ascertain whose views count. In the words of Dr Bell:
… children can tell you which persons are correct marriage partners and which are avoidance relations. However, when a dispute concerning a particular marriage arises, only certain senior persons, who are familiar with the intimate details, will be prepared to offer an opinion. This may appear to cut across legal notions of impartiality but within the Warlpiri system, it is improper and extremely dangerous to pass judgment on the business of other persons. The authority of persons to interpret the law derives from their standing within the particular group affected by an action. People who are not related through ties of kin and country have no right to speak.[739]
The common law draws no such distinctions. The evidence of any person based on direct observation or experience is admissible as evidence of what was observed or experienced. But the existence of customary rules restricting who may testify on a certain matter is relevant, not merely because the law should be sensitive, rather than insensitive, to such constraints where possible (eg where there is a choice of witnesses) but because more accurate and authoritative evidence may be obtained from persons sure of their right to speak in relation to a particular matter. These problems are not capable of a general solution through legislation, though some specific empowering provisions which may help are recommended below. But lawyers and administrators should be aware of the difficulties, and be prepared to take necessary measures to deal with them.