Evidentiary issues

9.2          In a native title proceeding, claimants must provide evidence to establish the existence of native title as defined in s 223 of the Native Title Act.^[1] As discussed in Chapter 4,this will involve claimants bringing evidence to demonstrate 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. Chapters 5, 7 and 8 make proposals for reform of the definition of native title. 

9.3           This section considers the kind of evidence that may be brought to establish the existence of native title rights and interests in litigated and consent determinations. In particular, it considers the role of expert evidence in native title proceedings.

9.4          The Federal Court assesses this evidence and makes a determination as to whether the legal requirements are satisfied or, in the case of a consent determination, makes a determination giving effect to the agreement between the parties. A determination provides the basis for recognising Aboriginal or Torres Strait Islander law, and the relationship between native title and other rights and interests, under Australian law.

Expert evidence

9.5          Evidence to establish native title under s 223 draws on a wide range of expert evidence, including evidence provided by historians, archaeologists, botanists, palaeontologists, cartographers, and anthropologists:

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.^[2]

9.6          This expert evidence may have significant value to the Court.^[3] Vance Hughston SC and Tina Jowett have observed that expert evidence is often of particular importance where the collective memory of a claim group does not extend prior to the assertion of sovereignty. Therefore

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.^[4]

9.7          However, Hughston and Jowett identify several concerns with the processes surrounding the use of expert evidence:

• concerns have at times been expressed that expert evidence is partisan or biased, possibly because experts are briefed by only one party and may have a long-standing association with a particular claim group;^[5]

• there have been instances of experts giving evidence about matters extending beyond their professional expertise;^[6]

• 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.^[7]

9.8          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 be beneficial in avoiding 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.

9.9          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.^[8]

9.10       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.^[9]

9.11       The Federal Court Rules 2011 (Cth) provide the Federal Court with the power to make a range of directions relating to expert evidence,^[10] including, for example, that the experts:

• confer, either before or after writing their expert reports;^[11]

• produce to the Court a document identifying where their opinions agree or differ;^[12]

• provide their evidence one after another;^[13]

• be sworn at the same time and that the cross-examination and re-examination be conducted by putting to each expert in turn each question relevant to one subject or issue at a time, until the cross-examination or re-examination is completed;^[14] or

• be cross-examined and re-examined in any particular manner or sequence.^[15]

9.12       As noted in Chapter 3, there is a lack of experts and anthropologists with expertise in native title matters. This was also noted by several stakeholders.^[16]

9.13       The ALRC seeks stakeholder views on whether the use of expert conferences and concurrent expert evidence are beneficial in native title proceedings, and, if so, whether any reforms to the law or legal frameworks are needed. The ALRC is also interested in other procedures that may lead to more effective use of expert evidence.

Archiving evidence

9.14       The evidence used in native title proceedings provides information about the laws, customs, histories and cultures of Aboriginal and Torres Strait Islanders peoples. The evidence may therefore hold significant value to persons outside proceedings, whether for the public, as contributing to a stronger understanding of Aboriginal and Torres Strait Islanders peoples and their history.

9.15       However, this information is generally not available to persons outside proceedings. As noted by Dr Paul Burke, this information ‘remains inaccessible … because it has been initiated within the legal context of native title and remains confidential’.^[17] Just Us Lawyers noted the value of archival information, and suggested that ‘archival information should be digitised, indexed and made searchable and available to claimants’ legal representatives’.^[18]

9.16       The ALRC seeks stakeholder comments on whether and, if so, how the material generated through the native title connection process should be dealt with, given that some of the information will, for example, be culturally sensitive or refer to person and family matters. For example, a publicly accessible database of key archival material may be of value, subject to appropriate consideration of cultural sensitivity and privacy.