Irvin, Zoey --- "Wilcox J and Olney J: A Comparative Analysis of Historical Assumptions in the Yorta Yorta and Single Noongar Decisions" [2007] IndigLawB 6; (2007) 6(24) Indigenous Law Bulletin 24
Wilcox J and Olney J: A Comparative Analysis of Historical Assumptions in the Yorta Yorta and Single Noongar Decisions
by Zoey Irvin[1]
Introduction
On 19 September 2006, Justice Wilcox in Bennell v Western Australia[2] (‘Single Noongar decision’) in the Federal Court recognised that the Noongar community has native title rights and interests in the south-west of Western Australia (‘WA’), inclusive of the Perth Metropolitan area.[3] The judgment stands in contrast to Members of the Yorta Yorta Aboriginal Community v Victoria[4] (‘Yorta Yorta trial’) in the Federal Court in 1998, Members of the Yorta Yorta Aboriginal Community v Victoria[5] (‘Yorta Yorta appeal’) in the Federal Court in 2001 and Members of the Yorta Yorta Aboriginal Community v Victoria[6] in the High Court in 2002 (‘Yorta Yorta High Court appeal’) where native title was found not to exist over a large area of New South Wales (‘NSW’) and Victoria. The different outcomes are noteworthy because both cases concerned applications for native title over areas of land in the ‘settled south’ of Australia.
History has long been understood as fundamental in native title proceedings.[7] For a successful determination of native title, the applicants must demonstrate a continuing historical connection with the land pursuant to traditional laws and customs practiced by their ancestors.[8] Accordingly, an inquiry is necessary to ascertain the historical ‘facts’ on which a judicial determination of native title is partially based. However, historical assumptions in relation to the ‘settled south’ may unwittingly influence such an inquiry and therefore affect the case’s outcome.[9] This article is a comparative analysis of the assumptions underpinning Olney J’s assessment of the evidence in the Yorta Yorta trial with Wilcox J’s in the Single Noongar decision.
Assessment of Assumptions
The native title process can be described as a ‘battle of historiographies’ between the applicants and the respondents where the judge decides who wins by accepting one version of history over the other; essentially a story of traditional continuity or discontinuity.[10] For a finding of continuity, traditional laws and customs are not required to remain frozen in time, or as they were when the British asserted sovereignty. Some change is permissible before native title rights and interests are ‘lost’ because the requisite culture has not been maintained. In assessing the degree of change that is tolerable before it could be said that Noongar laws and customs had ceased to be ‘traditional’, Wilcox J referred to the test expressed by Gleeson, Gummow and Hayne JJ in the Yorta Yorta High Court appeal:
it is necessary to demonstrate that [despite the changes] the normative system out of which the claimed rights and interests arise is the normative system of the society [at sovereignty]…not a normative system rooted in some other, different, society…it must be shown that the society…has continued to exist throughout that period as a body united by its acknowledgement and observance of the laws and customs.[11]
Accordingly, Wilcox J felt that the test required a judge to ‘look for evidence of the continuity of the society, rather than require unchanged laws and customs.’[12] By contrast, Olney J looked for evidence of discontinuity.[13] Being judge at first instance, Olney J clearly did not have the benefit of Gleeson, Gummow and Hayne JJ’s later remarks. Nevertheless, their Honours did not consider Olney J’s historical approach flawed.[14] So what might explain the different foci of the two judges, assuming that neither approach offended the substantive requirements of the law?[15]
It is arguable that the judge’s choice between the competing histories is implicitly conditioned and legitimated by that judge’s historiography: whether a ‘cultural survival’ or ‘cultural loss’ thesis is used by the judge to describe the state of Indigenous ‘traditional’ ways of living in Australia’s ‘settled south’.[16] In other words, two judges, who are influenced by differing sets of assumptions about Aboriginal history may decide two cases with similar, or the same evidence, differently, despite that the substantive aspects of the law are the same in both.[17] The outcome is different because the historical evidence tendered in court is interpreted according to the judge’s understanding of history.[18] Broad assumptions about history can act to condition the manner in which the judge interprets the evidence.
Academics and others have argued that non-Indigenous people have constructed an imaginary divide between Australia’s ‘remote north’ and ‘settled south’.[19] According to the narrative, the north is thought to be where ‘real’ Aborigines live a traditional life; a state of affairs not possible in the south where dispossession and disease resulting from colonisation has caused Indigenous people to lose their culture and tradition.[20] The narrative dictates that any assertion of cultural continuity in the south is really an effort by Indigenous people to revive a lost culture,[21] which is detrimental to the case of native title applicants because of the principle that once lost, native title rights and interests cannot be revived.[22] The operation of the ‘settled south’ narrative can therefore lead to a misleading assessment of the evidence in the south because of the operation of assumptions which are not tested by evidence.
It is arguable that Olney J in the Yorta Yorta trial implicitly adopted the orthodox narrative relating to the ‘settled south’ which conditioned his Honour to look for discontinuity of traditional laws and customs.[23] Owing to the ‘settled south’ narrative, Olney J approached the historical record with the pre-existing belief that Yorta Yorta people could not have maintained their connection to country or continued practice of traditional laws and customs.[24] In contrast, Wilcox J in the Single Noongar decision, on multiple occasions expressed that he was ‘impressed’,[25] even surprised,[26] by the applicants’ evidence. What this suggests is that the ‘settled south’ narrative was in Justice Wilcox’s mind, but his appropriate openness of mind to assessing the evidence before him meant that his Honour put aside his assumptions and decided the case on its merits. On this analysis, it might be suggested that, far from being the radical decision, as it was represented by some pundits, Wilcox J was acting quite appropriately and conservatively, doing no more than ‘objectively’ exercising the judicial role on the basis of the facts before him.
Significantly, Wilcox J acknowledged a section in Dr Host’s, the applicant’s historian,[27] historical report headed ‘The Survival Thesis’.[28] His Honour felt that it made ‘fascinating (and depressing) reading’ and that it provided support to the applicants’ case by rebutting ‘those writers who argue that 19th century travails totally destroyed the south-west pre-settlement Aboriginal society’.[29] Beyond this, his Honour felt that the section of the report offered ‘little assistance in respect of the issues falling for consideration in [the Single Noongar] case’.[30] Wilcox J’s remarks indicate that his Honour was aware of the historiographical debates concerning Noongar culture in Western Australia’s ‘settled south’. Therefore, Wilcox J’s assessment of the evidence in the Single Noongar case was not controlled by untested assumptions about history, as was Olney J’s in the Yorta Yorta trial. The finding of cultural continuity by Wilcox J was not the result of him being a more progressive or radical judge, but perhaps the more conservative.
Conclusion
The different outcomes of the Yorta Yorta trial and Single Noongar decisions can be partly understood as a consequence of the way assumptions about the ‘settled south’ operated in both cases. In Yorta Yorta, Olney J’s assessment of the evidence was unwittingly influenced by the assumptions of the ‘cultural loss’ narrative, which conditioned a finding of cultural discontinuity and therefore no native title. On the other hand, in the Single Noongar decision, Wilcox J’s knowledge of the historiographical debates meant that his Honour could make a decision confined to the evidence, without being influenced by implicit assumptions. Ultimately, this lead to a judgment that challenges the imaginary north-south divide, where Wilcox J held that ‘authentic’ Indigenous culture does exist in the ‘settled south’. Hence, the fundamental lesson of the Single Noongar decision is that each case should be decided on its merits without assumptions about geography.
Zoey Irvin is an undergraduate law/history student at the University of Western Australia. Zoey has worked as a research assistant at Ngaanyatjarra Land Council in WA.
[1] The author wishes to thank David Ritter and Peter Bednall for valuable comments on earlier drafts of this article.
[3] ‘Single Noongar’ is in reference to the single claim policy that was initiated by the Noongar people and the South West Aboriginal Land and Sea Council that resulted in a united claim covering all Noongar country. See Dr Lisa Strelein and Dr Stuart Bradfield, ‘The Single Noongar Claim: Negotiating Native Title in the South West’ [2004] IndigLawB 36; (2004) 6(2) Indigenous Law Bulletin 11, 11.
[4] [1998] 1606 FCA (Unreported, Wilcox J, 18 December 1998) (‘Yorta Yorta trial’).
[5] [2001] FCA 45; (2001) 110 FCR 244 (‘Yorta Yorta appeal’).
[6] [2002] HCA 58; (2002) 214 CLR 422 (‘Yorta Yorta High Court appeal’).
[7] See for example: David Ritter and Frances Flanagan, ‘Stunted Growth: The Historiography of Native Title Litigation in the Decade Since Mabo’ (2003) 10 Public History Review 21; David Ritter, ‘No Title Without History’ in Mandy Paul and Geoffrey Gray (eds), Through a Smoky Mirror: History and Native Title (2002) 81; Alexander Reilly, ‘The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title’ (2000) 28 Federal Law Review 453; Robert Foster, ‘Turning Back the Tide: The Use of History in the Native Title Process’ [1999] IndigLawB 58; (1999) 4(22) Indigenous Law Bulletin 17; Harriet Ketley and Clare Ozich, “Snapshots of Adventitious Content’: The Assessment of Oral and Historical Evidence in Native Title Claims’ (2003) 23 Studies in Western Australian History 83; Christine Choo and Margaret O’Connell, ‘Historical Narrative and Proof of Native Title’ in Mandy Paul and Geoffrey Gray (eds), Through a Smoky Mirror: History and Native Title (2002) 11; Ann Genovese, ‘The Use of History in Native Title: Historical Perspectives’ (2003) 12 (3) Early Days 326.
[8] Native Title Act 1993 (Cth), s 223.
[9] For assumptions about Aboriginal people in the ‘settled south’ generally see: Geoffrey Gray ‘History in the Courtroom: A Brief Consideration of Some Issues’ in Mandy Paul and Geoffrey Gray (eds), Through a Smoky Mirror: History and Native Title (2002); Christine Choo and Margaret O’Connell, above n 7. For assumptions about Aboriginal people in the ‘settled south’ in WA, see D Pierce, ‘The Transmission of Stories, History and Cultural Knowledge within the Noongar Community is Alive and Well’ in Christine Choo and S Hollbach, History and Native Title: Studies in Western Australian History 23, (2003).
[10] Ritter, above n 7, 81; Ritter and Flanagan, above n 7, 25.
[11] Bennell v Western Australia, above n 2, [776].
[12] Ibid.
[13] Silences in colonial records about traditional practices and the existence of a petition was sufficient evidence for Olney J to conclude that Yorta Yorta traditional culture was no longer observed by 1881: Yorta Yorta trial, above n 4, [118], [119].
[14] Yorta Yorta High Court appeal, above n 6, [68].
[15] Justice Wilcox’s judgment is subject to appeal.
[16] Ritter, above n 7.
[17] Ibid 89; mentioned briefly in Ritter and Flanagan, above n 7, 25.
[18] Ritter, above n 7, 89.
[19] Mandy Paul and Geoffrey Gray, ‘Introduction’ in Mandy Paul and Geoffrey Gray (eds), Through a Smoky Mirror: History and Native Title (2002) ix; Geoffrey Gray, ‘History in the Courtroom: A Brief Consideration of Some Issues’ in Mandy Paul and Geoffrey Gray (eds), Through a Smoky Mirror: History and Native Title (2002) 33; Ritter, above n 7, 86.
[20] Ibid.
[21] Ritter, above n 7, 86.
[22] Yorta Yorta High Court appeal, above n 6, [53].
[23] Ritter, above n 7.
[24] Ibid.
[25] Bennell v Western Australia, above n 2, [450], [597], [599].
[26] Ibid [785].
[27] Ibid [50].
[28] Ibid [117].
[29] Ibid.
[30] Ibid.