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Carter, Anne --- "The Definition and Discovery of Facts in Native Title: The Historian's Contribution" [2008] FedLawRw 13; (2008) 36(3) Federal Law Review 299


    Anne Carter[*]


    The relationship between law and history has long been the subject of academic interest. Both disciplines have occasion to turn to the past, yet their purposes and methods for doing so often vary. Some commentators have noted the similarities between the two disciplines, describing them as 'intellectual cousins'[1] who share a 'natural affinity'.[2] Yet, equally, commentators have noted the tensions between the two disciplines, depicting them not as allies but as strangers or enemies.[3] These scholars have painted a picture of competing logics, suggesting that the clash between the law's 'logic of authority' and the historian's 'logic of evidence' creates an uneasy relationship.[4]

    Although capturing the attention of both judges and commentators, the intersection between law and history continues to elude precise definition. In Wik Peoples v Queensland Gummow J observed that

    [t]here remains lacking, at least in Australia, any established taxonomy to regulate such uses of history in the formulation of legal norms. Rather, lawyers have 'been bemused by the apparent continuity of their heritage into a way of thinking which inhibits historical understanding'. Even if any such taxonomy were to be devised, it might then be said of it that it was but a rhetorical device devised to render past reality into a form useful to legally principled resolution of present conflicts.[5]

    Since this time there have been a number of attempts to classify the various ways in which history might be used as part of judicial reasoning. For instance, the late Justice Selway, writing extra-curially, divided the courts' uses of history into several categories, including the use of history in finding facts in issue and constitutional facts, in interpreting statutes, and in developing the common law.[6]

    This article is concerned specifically with the task of proving the material facts in native title claims. In such claims the material facts stipulated by the relevant legal rule stretch back into the distant past, meaning that the historical dimension of fact-finding becomes more acute. The article contributes to the existing debate by asking how historians might assist courts in their approximation of the past, either in terms of the inferential proof of the material facts or in the formulation of the type of past to be approximated.[7] In doing so, it considers how understandings of history may influence what can reasonably be required in evidentiary terms to find native title proved on the balance of probabilities. Such an inquiry is apposite given the much-acknowledged difficulties with the current native title regime.[8]

    The Native Title Act 1993 (Cth) ('the NTA') requires that a segment of the past be re-created that is broader and more complex than in conventional civil or criminal cases, as the claimants must prove a connection with the land under traditional laws and customs spanning a much longer period of time. Both lawyers and historians would be quick to agree that the 'actual past is gone' and cannot be observed directly.[9] In this sense, all facts that courts are required to prove are historical facts. The trier of fact has no first-hand experience of the events in question, and so these events must be reconstructed through a process of inference from the surviving material traces. Through this process of inference the courts create an approximation of the past.[10] In the context of native title this reconstruction presents the courts with considerable difficulties, as there will be fewer surviving material traces and no witnesses with memories of the events in question.[11] Further, there will be difficulties arising from the disjunction between traditional indigenous society and the demands of the Western legal system, which means that much of the material required to prove a connection to the land will not be reduced to written form.[12]

    The historical inquiry required for the proof of native title has sparked renewed vigour in the debate between law and history. Following the High Court's Mabo and Wik decisions it was expected that both history and historians would have an important role in the resolution of native title claims.[13] Mabo's rewriting of the law (through the rejection of the doctrine of terra nullius) was accompanied by a rewriting of Australia's history, meaning that the work of historians such as Henry Reynolds assumed national prominence.[14]

    Rather than endorsing a history of a settled colony, as had earlier decisions such as Cooper v Stuart,[15] the majority judgments in Mabo acknowledged that, for indigenous people, history had often meant dispossession and destruction.[16]

    Given this prelude, it is perhaps surprising that historians have so far played only a small part in the litigation of native claims under the NTA and have been notably overshadowed by anthropologists.[17] Perhaps because of their involvement with land claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth),[18] it is anthropologists who have been the dominant experts in native title determinations.[19]

    Sparked in part by this discrepancy, there is an emerging debate about history and native title.[20]

    Much of this literature draws upon the experiences of historians and lawyers who have been involved in the litigation of claims,[21] and while some of it touches upon epistemological questions, it does not offer a rigorous analysis in terms of the proof of native title.

    The most recent contribution to the debate is the book Rights and Redemption: History, Law and Indigenous People by Ann Curthoys, Ann Genovese and Alexander Reilly.[22] The book takes a broad approach, charting the interactions between historians and lawyers in a variety of legal settings, including native title disputes. The book offers a useful discursive account of some of the difficulties this interaction has produced, for example when historians have been called as expert witnesses. While it touches upon some of the difficulties claimants face in establishing the existence of native title, it does not seek to analyse rigorously the conceptual basis of legal decision-making and how historians can be involved in that process.

    What the existing literature does indicate is that lawyers' and historians' reasons for unearthing the past often differ. When courts adjudicate native title claims they are required to make conclusive decisions about the past.[23] As former Federal Court judge Robert Nicholson remarked extra-judicially, '[a] hearing is not a seminar … It is a definitive moment in determining legal rights.'[24] The trial judge is presented with competing versions of the past and must ultimately choose a single narrative.

    Historians too seek an approximation of the past but, as is widely acknowledged, their role is fundamentally different to that of a judge.[25] Historians are not required to make decisions that determine legal rights and responsibilities, and their accounts of the past can be continually revised and revisited. Historians themselves are rarely united in their methods, aims or assumptions, and both inside and outside the courtroom historical knowledge is constructed and often conflicting. From the Whigs to the postmodernists, historians have adopted varying approaches to the study of the past. Most contemporary historians would eschew the idea of a single, authoritative narrative about the past. Instead, according to Dickinson and Gidney, historians openly acknowledge that the 'facts' are open to different interpretations:

    There is … no 'supreme court of historical interpretation' with the power to settle a dispute with finality, and historians … would find the notion of such a court ludicrous, repugnant, or both.[26]

    A lack of appreciation of these differing roles and responsibilities has meant that — in both scholarly debate and their encounters in court — lawyers and historians have failed to interact meaningfully. Historians have tended to criticise the rigidities of the law's processes, whereas courts have assumed that their traditional approach to fact-finding can simply uncover the distant past,[27] without the need for assistance. While it has been noted that the interaction between the two disciplines must take place on 'law's home ground',[28] too often the discussions have focused simply on the need for historians to 'play by the lawyers' rules'.[29] True as this is, it does not address the fundamental nature of how courts operate. If historians and historical thinking are to contribute meaningfully, it must be within the confines of the adjudicative process.

    This article extends the existing literature by clarifying, in legal terms, just how this contribution can occur. To do this, it analyses the definition and proof of facts in native title claims in evidentiary terms. The article is concerned, predominantly, with how history and historical perspectives can be accommodated within the regime set down by Parliament and the confines of the adjudicative process. While it acknowledges that 'history' itself is contested, and there are many debates about how history should be understood and what methods it should employ, these are largely beyond the scope of this article. These debates warrant further consideration, but this article argues that there must first be an understanding of how it is that the adjudicative system can engage with the various perspectives offered by historians.

    The requirements of proof have been set down by the legislature in s 223(1) of the NTA, but as Part I demonstrates, there is considerable ambiguity within these requirements. Part II analyses the inferential proof of these stipulated material facts, arguing that historians can assist by providing generalisations of knowledge that can influence both the selection of evidence and the inferences drawn from this evidence. Finally, Part III considers whether the influence of historians can extend further to inform the selection of the material facts. Although courts are obliged to seek a single narrative, historians might assist the courts' choices by informing what particular single narrative of the past is sought.

    These themes are examined in the context of native title jurisprudence in Australia.[30] Yorta Yorta[31] remains the latest word from the High Court on the interpretation of the material facts of native title, and so is central to any discussion of the problems of proof. Although the judgments have spawned a variety of case-notes and commentaries,[32] particularly because of the widespread disappointment that accompanied the result,[33] there remains a need for a more rigorous analysis of the case in inferential terms. Aspects of the case are examined in this article from an evidentiary perspective, and are contrasted with more recent jurisprudence from the Federal Court, where the Court has grappled with the requirements laid down in Yorta Yorta.

    I Requirements of Proof in Native Title Claims

    When courts are required to unearth the past and make findings of historical fact, as they are in native title claims, they must make definitive decisions about the past. These decisions are dictated by the material facts, which are derived from s 223(1) of the NTA.[34] Although the High Court has emphasised that the statutory definition of native title is paramount,[35] it contains considerable ambiguity and leaves much scope for interpretation. This part examines the current construction adopted by the High Court, and examines how the courts have approached the standard of proof in the context of native title.

    A The nature of native title under the NTA

    The NTA's recognition of native title 'translates' traditional rights into rights that are commensurable with other rights, meaning that they can be enforced by Australia's 'ordinary' legal system.[36] The content of particular native title rights and interests is derived from indigenous law and custom, and so must be determined in each case as a matter of fact.[37]

    B Material facts required to prove native title

    Section 223(1) provides:

    The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

    (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

    (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

    (c) the rights and interests are recognised by the common law of Australia.

    The courts have read this section as involving two separate but related factual inquiries, noting that the same evidence may be relevant to both questions.[38] As Selway J noted, the court must determine 'as a matter of fact' the questions raised in paragraphs (a) and (b), but it is not required to 'apply, administer or enforce traditional law'.[39] Paragraph (c) raises issues of law, which are dependent on the two factual inquiries.[40]

    The first factual inquiry involves the identification of both the relevant laws and customs, and the rights and interests in relation to land or waters that stem from these laws and customs.[41] Following the High Court's decision in Ward, and the conceptualisation of native title as a 'bundle of rights', it is necessary for the rights and interests that comprise native title to be separately identified.[42] The second factual inquiry necessitates a connection with the land or waters under the traditional laws and customs that have been identified. Central to both factual inquiries is the interpretation of the requirement of 'traditional', which carries implications in terms of both continuity and connection.

    While the courts are clear that there are two factual inquiries to be undertaken, precisely what these inquiries entail is far from self-evident. This part focuses on the current construction of the material facts endorsed by the majority of the High Court in Yorta Yorta, although in Part III alternative constructions are considered.

    C Interpretation of 'traditional'

    In Yorta Yorta[43] the majority's interpretation of s 223(1), and the key word 'traditional', epitomises a narrow approach to the formulation of the material facts.

    The majority's interpretation was informed by its analysis of the conceptual underpinnings of native title and, in particular, the effect of the intersection of two normative systems.[44] As there could be no parallel law-making system operating after the assertion of sovereignty, the majority held that the only rights or interests capable of recognition were those originating in pre-sovereignty laws and customs.[45]

    This pre-sovereignty requirement decisively affected the majority's interpretation of the word 'traditional'. In addition to expressing the way in which laws and customs were transmitted, the majority held that the word contained two other elements. First, it referred to the age or time-span of traditions: the laws or customs must have their origins in the 'normative rules' of indigenous societies that existed prior to sovereignty.[46] Secondly, the 'normative system under which the rights and interests are possessed' must have had a 'continuous existence and vitality since sovereignty'.[47] Without this continuity of the normative system, the rights and interests would cease and could not later be revived.[48]

    This construction of the word 'traditional' requires an inquiry into the relationship between the observance of particular laws and customs in the past and in the present.[49] The claimants must prove that traditional laws and customs were acknowledged and observed prior to sovereignty, that they are acknowledged and observed in the present, and that there is a connection between the two.[50]

    The nature of this connection between past and present was also informed by the particular meaning given to the word 'traditional'. In order for present practices to be properly described as 'traditional', the majority held that the claimants must prove that laws and customs have been acknowledged and observed 'substantially uninterrupted' since the time of sovereignty.[51] This requirement of substantial continuity impacted upon the extent to which changes or disruptions could be permitted.[52]

    D 'Connection' with the land

    The second factual inquiry, mandated by s 223(1)(b), requires the establishment of a 'connection' with the land or waters, by the traditional laws and customs identified in the first inquiry.[53] As with subsection (1)(a), the notion of continuity is imported through the interpretation of the word 'traditional': the laws and customs by which the connection with the land is established must have continued substantially uninterrupted since sovereignty.[54]

    E The nature of proof in native title

    Once the material facts have been isolated, the court must consider whether these facts can be inferred from the available evidence. This requires an understanding of how the notion of proof is approached in the context of native title.

    Although there are some unique evidentiary procedures in native title proceedings,[55] and the possibility of suspending the rules of evidence,[56] the standard of proof remains the civil standard of the balance of probabilities.[57] In other contexts it has been suggested that the civil standard of proof is to be applied flexibly, and is contingent upon the nature of the cause of action.[58] However, recent authorities suggest that there is only one civil standard, but that the nature and quality of the evidence sufficient to achieve this standard will vary according to the nature of the fact to be proved.[59]

    Given the nature of the available evidence in native title cases the courts have recognised that proof will, of necessity, involve drawing inferences back to times before the memory of the witnesses.[60] Testimony from Aboriginal witnesses will typically relay oral traditions stretching back only three or occasionally four generations, with the result that the 'historical timeline' will be incomplete.[61] The current interpretation of s 223(1), requiring the proof of laws and customs at the time of sovereignty, means that the inferential leaps necessary for a successful claim will be larger than those required in conventional cases.

    The necessity for, and nature of, these inferential leaps was considered in Mason v Tritton.[62] In this case a native title 'right to fish' was raised in defence to a charge of being in possession of abalone contrary to NSW fisheries legislation. The appellant submitted that a 'presumption of continuance' ought to apply due to the lack of evidence for the period between 1788 and the 1880s.[63] Kirby P was of the view that these evidential hurdles could be overcome by what should correctly be described as a 'process of inference', whereby facts in the present could be used to infer the existence of facts in the past, absent intervening events.[64] According to Kirby P, such a process of inference was demanded by the nature of native title claims:

    In the nature of Aboriginal society, their many deprivations and disadvantages following European settlement of Australia and the limited record keeping of the earliest days, it is next to impossible to expect that Aboriginal Australians will ever be able to prove, by recorded details, their precise genealogy back to the time before 1788. In these circumstances, it would be unreasonable and unrealistic for the common law of Australia to demand such proof for the establishment of a claim to native title.[65]

    This process of inference has been applied in subsequent native title determinations, due to the impossibility of establishing 'what the facts actually were' at the time of sovereignty.[66] Selway J in Gumana v Northern Territory was prepared to draw inferences back to 1788 based on 'what the Yolngu claimants currently do and from what they have observed their parents and elders do and from what they were told by their parents and elders.'[67] His Honour traced the common law authorities dealing with proof of custom extending back to 'time immemorial', commenting that this type of evidentiary inference should be applicable in the context of proving native title if there was evidence that customs or traditions had 'always' been observed.[68]

    In Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) Lindgren J agreed that, in principle, such inferences of retrospective continuance are possible.[69] He noted, however, that such inferences will depend on the available evidence and will be easier to draw over shorter periods of time.[70]

    This process of drawing inferences back to the past presents a clear opportunity for historians – with their skills and experience in uncovering and understanding the evidentiary archive – to contribute to the process of proof.

    II Evidence and Inference: Proving the Material Facts

    The process of proving material facts involves, in essence, the establishment of a link between the tendered evidence and the material facts. This link between the evidence and the material facts can be understood as comprising two separate but interrelated parts: the collection of surviving traces from the past, and the evaluation of the weight to be given to this evidence.

    This dual process does not occur in isolation, but is informed by the fact-finder's experiences in the world and what might be described as their background 'generalisation[s] of knowledge'.[71] George F James has suggested that 'in every instance proof must be based upon a generalization connecting the evidentiary proposition with the proposition to be proved'.[72] Other evidence scholars have agreed that proof is premised upon such generalisations, although the concept has been expressed in slightly different terms. W A N Wells, for instance, employed the phrase 'natural logic' to refer to learnt experiences based on life in the community, suggesting that these experiences influence whether the evidence provides a persuasive 'approximation' of 'reality'.[73]

    This part considers how historians might assist courts in their approximation of the past by providing generalisations of knowledge. Historians' experience in reading colonial documentary archives makes them alive to gaps, patterns and problems in documentary records in a way that many lawyers are not. For example, particular phrases may have an interpretation beyond the literal meaning of the words on the page. In this way, historians may provide a different prism through which to view the evidence, which can influence both the selection of evidence and the inference of the material facts. These will be considered in turn.

    A Selection of evidence

    In the adjudicative process the admission of evidence is driven by the notion of relevance. Relevance is central to the activities of both lawyers and historians, notwithstanding that their reasons for turning to the past often differ. While for lawyers uncovering the past is necessary only for the purposes of resolving a present dispute, historians are concerned to understand the past in all its complexity.[74] Typically, the lawyer's inquiry will be narrow, circumscribed by strictly defined ends (the discrete material facts in dispute), whereas the historian's investigation will span a broader time-frame so that context can be appreciated and wider patterns discerned. Historians can largely define their own ends, and in doing so define what will be considered relevant.

    These differing pursuits of the past, and corresponding notions of relevance, can create obstacles for the interaction of lawyers and historians. Historians' intellectual freedom permits them to pursue various avenues of inquiry that a court may reject as irrelevant. For example, in the Cubillo v Commonwealth (No 2) stolen generations case[75] O'Loughlin J held that Mr Gunner's mother had given informed consent to his removal, implicitly rejecting historical evidence that sought to elucidate the wider context which might have indicated informed consent was unlikely.[76]

    However, in the context of native title it is precisely because the courts' inquiries must span such a long historical period that the broader approaches of historians might be instructive in assessing relevance. This can be illustrated by comparing the judgments of Olney J at first instance and Black CJ in the Full Federal Court in Yorta Yorta.

    Olney J and Black CJ divided on the question of whether the inquiry into traditional laws and customs should begin in the past or the present. Some commentators have questioned the effect of this, suggesting that changes (and therefore disruption to traditional lifestyles) are more likely to be discerned if the past is taken as the starting point.[77] The real difference though, it seems, can be explained in terms of relevance. Olney J began his inquiry in the past and made the determinative finding that by the 1880s the observance of traditional law and custom had ceased.[78] His inquiry stopped at this point: he did not think it necessary to make findings about present-day practices, as once expired native title cannot be revived.[79]

    Black CJ regarded this approach as incomplete, and his judgment illustrates how historical perspectives might illuminate relevance. Black CJ held that evidence from living witnesses about the continuance of traditional practices 'needed to be dealt with before a finding could be made that native title had come to an end'.[80] He emphasised the need to take a broad 'historical snapshot' that considered evidence from an extensive period of time, reasoning that a discrete historical inquiry makes it impossible to determine whether a change is simply an evolution or adaptation, or represents a complete interruption.[81] Black CJ's broader historical perspective meant that all available evidence was considered relevant, thereby creating a broader base for drawing inferences of continuity.

    B The role of generalisations in inferring the material facts

    In addition to contributing to the selection of 'relevant' evidence, historians might assist in the inferential proof of the material facts. Evidence does not speak for itself or present automatic factual conclusions; rather, a process of inference enables propositions to be established as a matter of probability.[82]

    While Wigmore and evidence scholars who have followed him have attempted to express this inferential process in logical terms,[83] it is not divorced from reality but is again dependent upon background generalisations of knowledge.[84] This process can be expressed in deductive form, so that the particular generalisation that drives the inferential analysis can be isolated. To take a simple example, if it is known that D had a fixed plan to kill V, an inference that D probably murdered V rests upon the generalisation that 'fixed designs are probably carried out'.[85] The validity of this particular inference may be challenged by critiquing the generalisation on which it is based. Historians might assist at this level, as their experiences in unearthing the past can inform the generalisations underpinning the inferential process.

    C Historians as expert witnesses

    Historians who have given evidence in native title cases about the history of a particular claim area often complain about being relegated to mere gatherers of factual data. They have expressed frustration that the court is not interested in their expertise in explaining the silences or perspectives of sources.[86] The law's insistence on a demarcation between 'fact' and 'opinion'[87] is difficult for historians, who are conscious that the very process of selecting 'facts' unavoidably involves interpretation.

    While some judges are optimistic that the courts can accommodate the perspectives of historians,[88] others have not been so willing to recognise historical expertise. The admissibility of expert opinion evidence in the Federal Court is governed by s 79 of the Evidence Act 1995 (Cth), which requires that the opinion be based on 'specialised knowledge'. This term is not defined by the Act and so the common law authorities, which indicate that the test is whether the expert can assist the trier of fact in reaching a more reliable decision,[89] have guided its interpretation.[90]

    In Bellevue Crescent v Marland Holdings Young J considered that the question of the admissibility of historians' evidence was novel.[91] Based on his review of existing authorities, Young J suggested there was a distinction between the 'facts of history' and 'what might be called social history'.[92] The latter type of history was not, in his mind, the proper subject of opinion evidence:

    Whilst courts may obtain the basal facts such as when a particular war broke out or other matters of record from reputable histories, analyses as to why certain things happened and generally how people behaved is not a matter which can be proved by the evidence of people who were not there but have ascertained the historical facts and then have analysed them to work out a conclusion.[93]

    His Honour was invited to receive opinion evidence from two historians concerning the use of land in inner Sydney in the 1800s, so that the terms of a deed could be construed. Although noting that these historians were 'eminently acceptable in the community', Young J was of the view that the 'knowledge of an historian' did not fit within the ambit of s 79.[94] First, he considered that the knowledge was 'based on the hearsay material of the past', a reason which was contrary to contemporary and later authorities permitting the use of expert knowledge (opinions) based on hearsay to draw inferences from basic facts,[95] and secondly he considered the opinion was not 'wholly or substantially based upon that knowledge but, rather, … an analysis.'[96]. This second reason suggests that Young J did not regard historical 'analysis' as 'specialised knowledge' that would assist him in drawing inferences. This reflects an assumption that historical documents can be interpreted without assistance.

    Despite this rejection of historical expertise, in other cases judges have been more willing to accept that historians may provide assistance. For instance, in Anderson v Wilson Beaumont J noted that expert historical evidence would be required if, contrary to his analysis of the precedential force of Wik, it was necessary to reconsider the High Court majority's interpretation of historical documents relating to the origins of pastoral leases.[97] Further, in recent native title determinations historians have been among the plethora of experts called by both claimants and respondents, and their evidence has largely been accepted.[98]

    However, some of Young J's reservations remain. In Harrington-Smith v Western Australia (No 7) Lindgren J considered numerous objections to expert reports. These reports, some of which were prepared by historians, expressed opinions about the 'complex question' of whether the claimants were relevantly connected to the land.[99] Lindgren J questioned whether the historians' perspectives about the interpretation of evidence should properly fall within the notion of 'opinion' evidence.[100] His Honour noted that it was difficult to distinguish between 'analysis, synthesis and summary of factual material' and the 'drawing of inferences',[101] commenting that:

    In some cases an interpretation is offered of the terms of a single letter. Generally speaking, I do not think an historian is qualified in terms of s 79 of the Evidence Act to give expert opinion of that kind.[102]

    Lindgren J admitted the historical reports (as no party was objecting in principle to their admissibility) but questioned whether parts of them should not more properly be received as 'submission as to the interpretation I should place on historical data' rather than as opinion evidence.[103] His Honour's brief reasons imply that he was reluctant to recognise historical interpretation as an opinion deriving from 'specialised knowledge', again reflecting an assumption that the court was equipped to undertake this sort of interpretation without assistance.[104]

    D Evaluating the evidence in Yorta Yorta

    The Yorta Yorta trial provides a clear illustration of the problems of this approach, and how the generalisations employed by the fact-finder may be critiqued by historians. In the course of his judgment Olney J remarked that the facts 'lead inevitably to the conclusion' that the claimants' ancestors had 'ceased to occupy their traditional lands in accordance with their traditional laws and customs', and that any acknowledgement and observance of those laws and customs had been 'washed away' by the 'tide of history'.[105]

    This finding proved to be decisive, as it was upheld by majorities in the Full Federal Court and High Court.[106] However, as this article argues, the conclusion reached by Olney J was by no means inevitable, but was premised upon particular generalisations about the strengths of the available evidence.

    Olney J's evaluation of the evidence was guided by the assumption that written records emanating from the nineteenth century were unproblematic and, indeed, provided the best window to the period under review. In contrast, oral tradition was viewed with suspicion: it was merely a 'further source of evidence' that should be given 'less weight' than other more reliable (European) evidence.[107] Olney J placed particular reliance on the writings of Curr, a pastoralist who lived in the claim area during the 1840s.[108] Curr's writings were regarded as the 'most credible' information about the 1840s, and were used to detail the content of the traditional laws and customs of the claimants' ancestors.[109] As he had done with the questions of indigenous occupation of the land[110] and genealogical descent,[111] Olney J indicated he was prepared to draw inferences from known facts about the observance of traditional practices in the 1840s back to the time of sovereignty.[112]

    The difficulty came when Olney J assessed the period after the 1840s, finding that there had been an interruption at this time.[113] He relied heavily on the writings of the missionary Matthews, and in particular the absence of commentary about the continued observance of traditional lifestyles during the Maloga mission era in the 1860s.[114] Coupled with this evidentiary silence was a petition signed in 1881 by 42 Aboriginal people. Although tendered by the claimants as evidence of their ongoing efforts to assert rights to land,[115] Olney J interpreted the petition as evincing an intention to relinquish land. He regarded the petition as 'positive evidence'[116] that could support an inference that by the 1880s the claimants' ancestors had ceased observing traditional laws and customs.[117]

    So pervasive were his Honour's evidentiary assumptions that they affected his evaluation of the more recent evidence tendered. Despite not viewing this evidence as relevant once he had found an interruption, Olney J considered it 'appropriate' to make some comments about current beliefs and practices.[118] These comments indicate that Curr's writings were treated as the standard against which all later practices must be measured, with the result that these practices were not viewed as sufficiently 'traditional'.[119]

    E Historians and generalisations of knowledge

    The above analysis illustrates the consequences of the finder of fact as his or her own historian. Historians could have assisted by providing different generalisations with which to assess the evidence, with the result that Olney J may have been less inclined to draw the inference that the observance of traditional laws and customs had ceased by the mid-nineteenth century.

    Two historians were called by the State of Victoria,[120] but apart from noting that they were called, Olney J's judgment provides no mention of the evidence they gave or their assistance to the Court. Experts from other disciplines detailed the historical record, and provided suggested interpretations of the data,[121] but ultimately Olney J appeared to assume he needed no assistance with the interpretation of documentary evidence.[122]

    Olney J's assumption that colonial writers could provide the best access to the past is one that many contemporary historians would find troubling.[123] In recent decades Australian historians have been endeavouring to write indigenous people back into historical narratives,[124] conscious of both the silences and biases in documents created by and for the colonisers.[125] Olney J appeared oblivious to this type of historiography. Instead, he accepted colonial writings as both an accurate and authoritative account of traditional law and custom.

    Furthermore, Olney J failed to address properly the weaknesses of the written evidence. He did note that early European observers possessed no special qualifications or training,[126] that Curr's recollections were subject to some temporal and geographical limitations,[127] and that contemporary scholars have disagreed over the interpretation of these records.[128] However, Olney J did not undertake a rigorous examination of the evidence, and failed to appreciate the significance of questions basic to historical methodology, such as why and for whom Curr was writing. He did not consider it important that Curr's observations were not published until the 1880s,[129] and were thus susceptible to embellishments and variations in memory over several decades.[130]

    Olney J's finding that the observance of traditional laws and customs had ceased by the 1880s provides a clear illustration of how different generalisations might have affected the inferences he drew. Despite acknowledging that the missionary Matthews was an 'architect of further disruption of traditional life',[131] Olney J did not examine the reasons why the written records, obviously a product of missionary society, were likely to be silent about the continued practice of traditional ways.[132] Further, he did not examine what types of observance might have been possible within the constraints of the missionary environment.[133] Similarly, Olney J's interpretation of the 1881 petition can be questioned, thus disturbing his assumption that it reflected a clear intention to surrender land. The petitioners could not use their own language to communicate,[134] and the influence of Matthews may have been greater than Olney J acknowledged.[135]

    The dissenting judgment of Black CJ in the Full Federal Court is insightful in this respect, as it provides an indication that different generalisations may have supported a different inferential analysis. Black CJ displayed an awareness of the limitations of colonial records that is largely absent in the other judgments in the case. He noted, for instance, the need to consider factors such as the viewpoint and preconceptions of the author, the purpose for which they were writing, their intended audience, their access to and connection with indigenous people, and the time-frame of their observations.[136] Colonial diaries and notes of casual observers, he suggested, might not provide an accurate description of indigenous lifestyles:

    The external and casual viewer of another culture may see very little because the people observed may intend to reveal very little to an outsider, or because the observer may be looking at the wrong time, or because the observer may not know what to look for, or for any one of numerous other reasons.[137]

    The practical importance of these observations was demonstrated when Black CJ addressed the petition. Black CJ, it seems, may have been less willing to draw an inference of 'abandonment' due to his adoption of different generalisations.[138] He noted that the petition was 'essentially a political document', and suggested that the words 'taken possession of' may have been understood differently as between the signatories and the author of the petition.[139] Further, Black CJ was more attuned to the nuances of the historical record. He did not proceed upon the assumption that changes or disruption necessarily heralded the cessation of traditional laws and customs. For instance, although noting that the alienation of land for pastoral purposes and the corresponding dislocation of the indigenous inhabitants 'may be accepted as historical fact',[140] in contrast to Olney J,[141] he emphasised that disruption did not necessarily mean there was a complete 'displacement' of native title.[142]

    F Proof post-Yorta Yorta?

    By critiquing aspects of Olney J's decision in Yorta Yorta, this part has suggested that historical perspectives can impact upon both the selection of evidence and the inferences drawn from this evidence.

    Recent determinations indicate that some judges are becoming more conscious of the impact of historical understandings. For instance, Nicholson J in Daniel v Western Australia[143] recognised that the interpretation of the historical record was dependent upon particular generalisations of knowledge:

    It must be always borne in mind that the historical record is incomplete. There are 'silences'. The nature of these 'silences' and the manner in which they should be addressed is the subject not merely of academic interest, but one that bears directly upon the approach the Court must take … to derive the inferences that of necessity must be made ...[144]

    In stark contrast to Olney J's literal reading of the evidence in Yorta, Nicholson J acknowledged the ethnocentricity of, and gaps in, the historical record.[145]

    Nicholson J's general observations about the shortcomings of the written record were accompanied by a willingness to accept the expertise of historians in interpreting colonial sources.[146] His Honour went on to find that despite disruptions to traditional lifestyles, including the loss of language[147] and the lack of physical presence,[148] the claimants had not lost their connection to the land.[149] To make this finding Nicholson J assessed all of the evidence (including that relating to current-day observance of laws and customs). He noted that although the impact of European settlement had 'brought them towards the cusp' of their traditional connection being 'washed away by the tide of history', this time had not 'yet arrived'.[150]

    These comments suggest that it was only a matter of time before the traditional connection to the land would be lost.[151] This situation seems to have eventuated in Gale v Minister for Land & Water Conservation (NSW).[152] The circumstances of this case were unusual in that the applicants elected to offer no evidence and withdrew from further participation in the proceedings so that a freehold title could be granted under legislation.[153] Ultimately what was sought was a determination that native title did not exist, and the judge had to be satisfied on the intended evidence that such a determination could be made.[154]

    An examination of Madgwick J's reasoning reveals his Honour cannot be critiqued on the same grounds as Olney J in Yorta Yorta. He did consider current evidence that might have supported an inference of present connection with the claim area. However, he found that there was 'scant evidence' of physical presence, places of significance or oral tradition that could support any 'actual link' with the land.[155] Madgwick J also acknowledged the risk that he might be 'ethnocentrically over-attracted to the writings of white authority figures such as senior scholars in anthropology and history', and that these figures might be 'at risk of ethnocentric over-attraction to written records and written opinions of scholars and others.'[156] Nevertheless, Madgwick J found that there had been a 'complete rupture with traditional ways' and that the changes could not be characterised as adaptations.[157]

    In both Gale and Daniel the judges' evidentiary selections and evaluations can be contrasted with those of Olney J, illustrating how differing historical understandings might impact upon the fact-finder's generalisations of knowledge. These generalisations, though, will not always be decisive. In situations where there have been considerable changes since colonisation, the difficulties of proof will be insurmountable.[158] This brings us back to the way in which the material facts are formulated, and raises the question of whether there are alternatives to the current construction of s 223(1).


    In endeavouring to understand how historical perspectives can fit within the adjudicative process, this article has so far suggested that historians can assist in the inferential proof of the material facts by providing generalisations of knowledge. The question remains, however, whether understandings of history can extend further to inform the very way in which the material facts for native title are defined. That is, do historians' approaches to the past have utility for how courts interpret s 223(1), from which the material facts are derived?

    This issue does not embrace the work of historians as expert witnesses at trial in providing analyses of historical data, but it does raise its own difficult questions of process. These questions concern the extent to which judicial interpretation can be rendered accountable, in terms of both the information considered and the construction adopted.[159] Although beyond the scope of this article, there is a need for further examination of the extent to which understandings of history can legitimately influence legal interpretations, and how such understandings might be incorporated into the adjudicative process.[160]

    While cognisant of these further issues, this part examines the prior question of whether historians can assist courts as they choose which facts are selected as 'material' if certain ends are to be achieved. To do this, it examines — in general terms — the ways that historians understand the discovery of the past, and their tendency to recognise the elusiveness and indeterminacy of that process. The purpose of this discussion is not to delve into historiographical debates between different schools of history, but to compare the reasons why and the ways in which historians and lawyers use facts. In addressing whether historians might contribute to the selection of the material facts, this part is not concerned with alternative bases upon which title may be recognised,[161] but with the scope for interpretation inherent in s 223(1) of the NTA.

    In interpreting these statutory words courts are required to give effect to the intention of the legislature in enacting the NTA.[162] This process of interpretation does not take place in a vacuum, but is informed by context.[163] This context includes the Act as a whole and the purposes for which it was enacted. As the Preamble to the NTA makes clear, Parliament sought to recognise and remedy the dispossession and disadvantage suffered by Aboriginal and Torres Strait Islander peoples. This points against a restrictive interpretation of the word 'traditional'.[164] Such a contextual approach recognises both the time-span and nature of the task at hand. For native title, this includes an awareness of the difficulties of giving reality to a segment of the past, and the historical and legal intersections of indigenous and non-indigenous cultures.

    A Historians and the elusive discovery of the past

    Historians might inform how courts interpret the material facts by providing insights into the types of decisions that can reasonably be made about the past. Although there are many styles and methods of historical inquiry,[165] historians tend to agree that 'history' can never definitively capture the past.[166] While historians continue to disagree about the correlation that is possible between the past and its depictions, recent debates about postmodernism and objectivity have engendered certain scepticism about the very possibilities of historical knowledge.[167]

    This understanding of the difficulties of reconstructing the past is accompanied by a particular approach to facts. While there are obvious methodological differences between legal[168] and historical[169] processes of fact-finding, it is not clear that there is any conceptual difference in how the notion of a 'fact' is understood. While the disciplines will often seek out different types of facts (depending on the questions asked),[170] for both groups 'facts' are descriptive statements about the world. The content of these descriptive statements is capable of almost infinite variety, but this is equally true of the historian's and the lawyer's facts.

    While both lawyers and historians rely on 'facts' in their attempt to approximate the past, the place of facts within legal decision-making and historical inquiry differs. Historians, on the whole, are less interested in discrete propositions (such as whether X killed Y on a particular date). As Ronald J Allen points out, historians do on occasion focus on such narrow questions that anticipate a 'yes/no' answer, but 'such cases are not a paradigm but a limit of the nature of historical inquiry'.[171] More often, historians seek to understand why things happened and to establish broader patterns of understanding about the past.[172] According to Allen, for historians

    the battle is fought at the level of competing visions, not at the level of individual fact, and factual details are put to the service of establishing that the organizing vision is more likely than those offered in opposition.[173]

    This means the historian will often cast more widely than the lawyer in their process of fact selection: while the fact that X killed Y may still be relevant, it is likely to be accompanied by a multitude of other facts that together create a more complete picture of the past.

    In this picture, an individual or specific fact will rarely be decisive. This has a bearing on whether errors of fact (which may be exposed by the discovery of new evidence) will negate the ultimate conclusion reached. For the historian, some factual errors may at times be tolerated without the argument as a whole losing its persuasive force.[174] For the lawyer, the consequence of factual errors will very much depend on what other evidence was used to prove the material facts. If individual facts in an inferential chain are later disproved, the particular inferential strand will collapse. If there is no other evidence, or several inferential strands collapse, the material facts may be unable to be proved.[175]

    These differing roles ascribed to individual facts are illustrated by the debates about the representation of Australia's past, known as the 'History Wars', which have divided popular and academic commentators.[176] Keith Windschuttle, adopting a narrow approach to the discovery of facts, has attempted to show that other scholars' estimations of the number of Tasmanian Aborigines killed are inaccurate.[177] For the historians under attack these criticisms largely miss the point as their theories, which attempt to capture some of the complexity of Aboriginal-European interactions, are about more than mere numbers.

    Given that historians use facts in this way, and generate scepticism about the possibility of uncovering the past definitively, can the approaches of historians assist courts in defining the material facts?

    B Critiquing the current selection of the material facts

    As explained in Part I, the current interpretation of s 223(1) of the NTA represents a narrow approach to the formulation of the material facts. It emphasises the pre-sovereignty nature of laws and customs, and the need to prove a substantially unbroken chain of connection between past and present.

    There have already been some attempts to analyse native title jurisprudence in terms of 'history', though these analyses tend to focus on the historian's perspective rather than how it is that 'history' can be incorporated into the court process. Alex Reilly and Ann Genovese, for instance, argue that in framing the test in this way the High Court has adopted an 'antiquarian' approach to history.[178] Their critique is based on the pivotal place given to the assertion of sovereignty by the majority in Yorta Yorta.[179] Reilly and Genovese suggest that the majority's interpretation is not properly justified in terms of legal theory, as it misunderstands the impact of the assertion of sovereignty by the British Crown. Referring to the writings of Dicey, they suggest that the capacity of the new power to recognise rights and interests created by a different legal system does not pose a challenge to sovereignty, meaning that the Court failed to address the more important question of the 'extent of recognition'.[180]

    Moreover, Reilly and Genovese argue that this positioning of sovereignty as the decisive point in the intersection of the two normative systems is not historically justified. The focus on traditional law and custom at a 'fixed point', the moment of sovereignty, effectively means that native title rights are static and incapable of evolution.[181] This conclusion, they argue, is 'ahistorical in nature', because it ignores what 'was happening as a matter of historical fact'.[182]

    By adopting this approach, Reilly and Genovese contend, the majority exhibit an unsophisticated understanding of history whereby the past is 'knowable in its entirety'.[183] This approach is based on the 'illusion of a determinate past',[184] and is underpinned by 'a central, unifying conceit about the nature of history: that the past can be declared in a finite manner and, because of this, is interchangeable with a notion of history.'[185]

    If Reilly and Genovese's argument is understood in evidentiary terms, it can be seen that their criticisms really are directed to the Court's formulation of the material facts. Essentially, their argument suggests that through this stipulation of the material facts the courts are searching for the wrong past: a past that is fixed and simply waiting to be unearthed. While the past may not be able to be captured finitely or conclusively, this does not mean that it cannot be captured at all. Rather, what will be captured is always an approximation. The real point to be gleaned from Reilly and Genovese's criticisms, then, is that the courts are searching for the wrong type of approximation, and therefore selecting the wrong material facts.

    The approximation demanded by the current interpretation of s 223(1) requires a strict chain of continuity since sovereignty, only tempered by the qualification 'substantially'.[186] This strict, linear approach to the definition of the material facts requires the proof of facts over a long stretch of time, with little possibility for change or adaptation. That the past can be captured with such specificity runs contrary to the understandings of historians, and means that the place of individual factual findings may be decisive. For instance, as in Yorta Yorta, if the claimants cannot establish a continuous connection, the whole claim fails. However, this selection of the material facts (involving a chain of specific factual links from past to present) is clearly not the only approach possible within the parameters set down by s 223(1).

    C History and the selection of the material facts?

    As this article suggests, alternative formulations of the material facts may be more consistent with the approaches of historians. The judgment of the minority of the High Court in Yorta Yorta demonstrates that alternative constructions of s 223(1) are possible. Furthermore, even within the constraints set by the High Court in Yorta Yorta, subsequent Federal Court judgments demonstrate the capacity of the provisions of the NTA to accommodate historical understandings.

    D The minority in Yorta Yorta: an alternative view

    Gaudron and Kirby JJ, in dissent, offered an alternative interpretation of the material facts. Their Honours agreed with the other members of the Court that the content of the rights and interests held under traditional laws and customs had to be proved,[187] but they disagreed about the extent to which continuity was required. In their view, it was not necessary that the rights and interests 'have been continuously availed of in relation to land, or, even, that they are presently availed of.'[188]

    In addition, Gaudron and Kirby JJ disagreed with the requirement that the connection with the land must be 'substantially maintained' since the time of sovereignty.[189] In their view, s 223(1)(b) required only that there be a 'present connection' to the land or waters in the claim area:[190]

    The relevant issue under s 223(1)(a) and (b) of the Act is simply whether the Yorta Yorta people now acknowledge and observe traditional laws and traditional customs by which they have a connection with the land and waters claimed by them.[191]
    There is nothing in that paragraph or any other part of the definition of 'native title' or 'native title rights and interests' which requires that 'traditional connection with the land … [be] substantially maintained'.[192]

    This differing selection of the material facts hinged upon a different understanding of the word 'traditional'. In their construction, 'traditional' merely required that the laws and customs 'have their origins in the past'.[193] It was not necessary to prove that ancestors of the claimants observed the same laws and customs, but simply that the current laws and practices 'had a sufficient degree of continuity with the past'.[194] This interpretation allows for a greater degree of change over time. Gaudron and Kirby JJ explicitly stated the current laws and customs did not have to 'correspond exactly'[195] with those acknowledged and observed pre-sovereignty, but that the differences 'should constitute adaptations, alterations, modifications or extensions made in accordance with the shared values or the customs and practices of the people'.[196]

    This approach to the formulation of the material facts still involves making some findings about the observance of laws and customs in the past, but the degree of similarity that is required between past and present is different. Gaudron and Kirby JJ's approach stems, in part, from their appreciation of the historical realities of dispossession which, as they noted, is one of the considerations listed in the Preamble to the NTA. European settlement, their Honours commented, 'almost certainly rendered the observance of traditional practices impracticable in a number of respects.'[197] Recognising this, the construction adopted by Gaudron and Kirby JJ sought a different type of approximation of the past: one that permits a greater degree of change over time, and places less emphasis on proving individual facts in an unbroken chain from past to present. It is thus more consistent with both the history of colonisation and how historians approach the reconstruction of the past.

    Interestingly, the Full Federal Court has recently attempted to align the minority interpretation with that of the majority. In Moses v State of Western Australia, in the context of a cross-appeal by the State and Commonwealth as to whether native title existed in a particular portion of the claim area, the Commonwealth argued that the trial judge had erroneously adopted the approach of the Yorta Yorta minority rather than that of the majority.[198] The Full Court (Moore, North and Mansfield JJ) rejected this argument, holding that the selected paragraphs did not establish the suggested difference in approach. According to the Full Court the difference between the minority and majority judgments 'does not lie in the statements of principle, but in the application of the principle to the facts of the case'.[199]

    The difference of approach contended for by the Commonwealth was based upon a comparison of a particular paragraph from the minority judgment with a paragraph from the majority judgment. The Full Court extracted these two paragraphs, and commented that they did not establish the suggested difference of approach. However, as this article submits, the selected passages are not representative of the judgments as a whole. The Full Court's brief reasoning lacks a detailed analysis of precisely how the minority interpreted the requirements of s 223(1). When this is done, it is clear that there is a difference in approach, and that the minority does offer an alternative selection of the material facts required to prove native title.

    E Section 223(1) since Yorta Yorta

    Since the High Court's decision in Yorta Yorta the Federal Court, at both trial and appellate levels, has grappled with the High Court's reading of the s 223(1) requirements and the application of these requirements to different factual settings. Despite the constraints set down by the High Court, the jurisprudence emerging from the Federal Court demonstrates that all is not settled in relation to the elements of proof.

    Similarly to the minority in Yorta Yorta, in De Rose the Full Federal Court supported an approach that places less emphasis on strict historical continuity. The Court was required to apply the construction of s 223(1) as articulated by the majority of the High Court in Yorta Yorta. In De Rose it was found that while an Aboriginal society had once occupied the claim area, there was no biological connection between the claimants and those who occupied the area prior to sovereignty. Most of the claimants had moved to the claim area from the west after the date of sovereignty, due to drought, resources, shelter, and marriage.[200] At first instance O'Loughlin J considered it unnecessary for the claimants to prove biological descent from those occupying the claim area at the time of sovereignty, but that some degree of continuity was necessary.[201] He held that the claimants formed part of a larger Western Desert Bloc society, and that the migratory movements of the claimants could be accepted 'as part of the history and social structure of the Aboriginal people of the Western Desert Bloc'.[202] This was sufficient to connect the claimants with those Aboriginal peoples occupying the area prior to sovereignty.[203]

    On appeal to the Full Federal Court the respondents disputed this finding.[204] Although there were some variations in the formulation of the arguments, essentially it was contended that post-sovereignty population shifts meant that the claimants' society was 'not a continuation of the pre-sovereignty society connected with the land.'[205] However, the Full Court held that the population shifts had occurred in accordance with the traditional laws and customs of the Western Desert Bloc, and were sufficient to constitute a connection with the land for the purposes of s 223(1)(b).[206] It was not disputed that the Western Desert society had had a continuous existence since sovereignty, nor that the traditional laws and customs of the Western Desert society had been acknowledged and observed substantially uninterrupted since that time.[207] Whether such a connection (by virtue of the wider Western Desert Bloc) is sufficient remains a question to be determined by the High Court.[208]

    This issue turns on how the requirement of 'connection' is interpreted, and whether adherence to a wider set of traditional laws and customs is sufficient to connect the claimants to the land. The Full Court's approach in De Rose places less emphasis on strict historical continuity, which has a bearing on the facts necessary to constitute a connection with the land. The Court's interpretation and application of s 223(1) may appear to loosen the strict Yorta Yorta requirements, in the sense that the type of past that the claimants are required to approximate is quite different. Instead of a strict linear chain of continuity, the Court was prepared to accept that adherence to a wider set of laws and customs, under which there were considerable population shifts post-sovereignty, could constitute a connection. This approach recognised the peculiar history and hardships of life in the Western Desert area, where the bleak nature of the land necessitated movement.[209]

    Wilcox J's September 2006 determination in Bennell v State of Western Australia[210] also appeared to be a departure from the strict Yorta Yorta requirements of continuity, although the Full Court has recently overturned key aspects of the judgment.[211] The Bennell determination concerned native title applications made over land and waters in and around metropolitan Perth. Wilcox J found that native title had continued to exist despite substantial changes since settlement. His judgment was hailed as a 'broader, more flexible' approach to the requirements of s 223.[212] While citing the Yorta Yorta majority's insistence that laws and customs have continued 'substantially uninterrupted' since sovereignty, Wilcox J's interpretation of what can constitute such 'substantial' continuity seemed to differ from that of the majority. In assessing how much change is 'tolerable', Wilcox J interpreted the Yorta Yorta majority to mean that 'one should look for evidence of the continuity of the society, rather than require unchanged laws and customs'.[213] In assessing whether the requisite continuity was present, Wilcox J stressed the need to look at all the circumstances of the case, including 'whether the changes seem to be the outcome of factors forced upon the community from outside its ranks'.[214] This awareness of the realities of colonial settlement seemed to influence his assessment of the changes. For example, when noting that there were changes to the descent rules his Honour commented that such changes 'must have been inevitable, if the Noongar community was to survive the vicissitudes inflicted upon it by European colonisation and social practices.'[215] Similarly, when addressing the fact that 'home areas' inhabited by estate groups had largely disappeared, Wilcox J noted that while this was a 'significant change' it was 'readily understandable' as it had been 'forced upon the Aboriginal people by white settlement'.[216]

    Wilcox J's approach to approximating the past took a broader historical view, which allowed him to conclude that changes over time were mere adaptations and not a complete interruption or break with the past. His Honour concluded that

    [t]here is no doubt that enormous forces have assailed Noongar society since 1829, making it impossible for many of the traditional laws and customs to be maintained. However, when I come back to the test stated in Yorta Yorta, and ask myself whether the normative system revealed by the evidence is 'the normative system of the society which came under a new sovereign order' in 1829, or a 'normative system rooted in some other, different society', there can only be one answer. The current normative system is that of the Noongar society that existed in 1829, and which continues to be a body united, amongst other ways, by its acknowledgement and observance of some of its traditional laws and customs. It is a normative system much affected by European settlement; but it is not a normative system of a new, different society.[217]

    The Full Court, however, disagreed with Wilcox J's interpretation of the continuity requirement in s 223. The Full Court held that Wilcox J, in asking whether the community that existed at sovereignty had continued to exist, did not pose the continuity question in the form required by Yorta Yorta. The trial judge, according to the Full Court, was required to ask whether the laws and customs have continued to be acknowledged and observed substantially uninterrupted since sovereignty, and had erred in failing to do so.[218] According to the Full Court, the continuity of a society does not necessarily mean that the rights and interests will remain unchanged.[219] Further, the Full Court held that Wilcox J had erroneously taken into account the effects of white settlement:

    [H]is Honour thought the effects of change could be mitigated by reference to white settlement. That is not a process contemplated by Yorta Yorta. ... [I]f, as would appear to be the case here, there has been a substantial interruption, it is not to be mitigated by reference to white settlement. The continuity enquiry does not involve consideration of why acknowledgement and observance stopped.[220]

    This stricter approach to historical continuity adopted by the Full Court, and close adherence to Yorta Yorta, reflects the approach taken in Risk v Northern Territory of Australia. At first instance Mansfield J dismissed the applications for native title on the ground that the current laws and customs observed were not 'traditional' in the requisite sense. Mansfield J found that the Larrakia people are the 'same society as that which existed previously, including at settlement'.[221] His Honour found that up until the first decade of the 20th century the Larrakia people continued to enjoy rights and interests under laws and customs that were the same (or substantially similar) to those that existed at settlement. However, his Honour went on to find that during several decades of the 20th century a combination of circumstances — significantly, the development of Darwin — 'interrupted or disturbed the presence of the Larrakia people in the Darwin area' with the result that their current laws and customs could no longer be seen as 'traditional'.[222]

    The appeal to the Full Federal Court was dismissed. On appeal it was argued, amongst other things, that the trial judge had misapplied Yorta Yorta in determining that the Larrakia people's traditional laws acknowledged and customs observed had been discontinued during the twentieth century.[223] The appellants submitted that it was not relevant to ask whether there had been a substantial interruption in the practice of traditional laws and customs since sovereignty; rather, the relevant question was whether the present-day laws and customs had their origins in those that were observed at sovereignty. The Full Court rejected what was called a 'book end' approach:

    It will be insufficient merely to examine the laws and customs of the present day and compare them with those that existed at sovereignty. Such a 'book end' approach has two significant dangers. First, it may lead to a conclusion that native title has continued throughout the period, when in fact the claimant group's customs and laws have been discontinued and later revived. Secondly, and more importantly for this appeal, if the laws and customs of the present day are not the same as at sovereignty, the book-end approach fails to ask the critical question whether the traditional laws and customs have ceased or whether they have merely been adapted.[224]

    The Full Court held that Mansfield J had not adopted such an approach, as he had considered the evidence of the intervening period and had considered whether the differences were the production of adaptation and modification or were so significant and substantial as to amount to interruption.[225] Further, the Full Court held that Mansfield J had not misunderstood the Yorta Yorta test. To the contrary, the Court held that his Honour had faithfully applied the Yorta Yorta construction to the question of whether there had been an interruption in the practice of traditional laws and customs. The Court set out several passages from Mansfield J's judgment where he explained, and re-iterated, the Yorta Yorta requirements. These passages, according to the Full Court, demonstrated that his Honour 'informed himself of the Yorta Yorta test and applied it to reach his conclusions'.[226]

    These recent Federal Court cases indicate there is continuing uncertainty about precisely how Yorta Yorta is to be applied. There is yet to be any clarification — or modification — of the requirements by the High Court.


    The contribution of historians to the litigation of native title claims must occur within the framework of the adjudicative process and the confines of the legislative test laid down in s 223 of the NTA. This article has clarified, from an evidentiary perspective, just how this contribution might occur.

    Historians can assist at both stages of the process of inferential proof. First, historians' tendency to take a broad 'historical snapshot'[227] may influence how courts assess what evidence is considered relevant. Secondly, historians' experience in interpreting the colonial archive may inform the types of inferences that can reasonably be drawn. This requires recognition that judges are not always equipped to interpret the historical record without assistance, and that historians have unique expertise in this area which may assist the trier of fact.

    In addition, the perspectives of historians may assist in the very definition of the material facts. The legislature has stipulated the test for proving native title in s 223(1), but the nature of the requisite factual inquiries falls to be determined by judicial interpretation. Although courts must decide whether a particular indigenous group is relevantly connected to the land as a matter of fact, there is scope for interpretation in how this historical connection is defined and what degree of continuity with the past will suffice. Historians' scepticism about uncovering the past definitively, and the ways in which they use facts, may provide a justification for taking a particular view of the material facts. It remains to be seen whether the High Court will continue down its present path of strict historical continuity, or will endorse an approach to the approximation of the past that is more consistent with the understandings of historians.

    The extent to which historians' perspectives can legitimately provide a contextual influence on the interpretation of s 223(1) remains a matter for further consideration. The differing roles and responsibilities of courts and historians make it clear that judicial interpretations cannot be evaluated solely in terms of understandings of history. However, the notion of 'informed interpretation',[228] which is reflected in s 15AB of the Acts Interpretation Act 1901 (Cth), provides a gateway for courts to consider other material in the interpretation of statutes. The extent to which historians' perspectives, in contributing to a fully informed reading of legislative provisions, can be accommodated in this way clearly warrants further investigation. The very nature of native title, encompassing as it does statutory terms of uncertain reach[229] and the proof of historical facts, suggests historians have an important contribution to make.

    [*] BA (Hons), LLB (Hons), University of Adelaide. I am particularly grateful to Andrew Ligertwood for his enthusiasm and support throughout the various stages of the preparation of this article. I would also like to thank Dr Steven Churches, Dr Gary Edmond, Dr Christopher Jones, Meaghan McEvoy, Alexander Reilly, Andrew Tokley and Jonathan Wells QC for their assistance and comments at various stages. I am also grateful to the anonymous referees for their helpful suggestions.

    [1] See, eg, Graeme Davison, 'History on the Witness Stand: Interrogating the Past' in Iain McCalman and Ann McGrath (eds), Proof and Truth: The Humanist as Expert (2003) 53, 53.

    [2] Jonathan D Martin, 'Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts' (2003) 78 New York University Law Review 1518, 1523.

    [3] Helen Hornbeck Tanner, 'History vs. The Law: Processing Indians in the American Legal System' (1999) 76 University of Detroit Mercy Law Review 693, 694, 698; Martin, above n 2, 1523–5; James C Mohr, 'Historically Based Legal Briefs: Observations of a Participant in the Webster Process' (1990) 12(3) Public Historian 19, 19–22.

    [4] F W Maitland, 'Why the History of English Law is Not Written' in H A L Fisher (ed), The Collected Papers of Frederic William Maitland (1911) vol 1, 480, 491. See also John Phillip Reid, 'Law and History' (1993) 27 Loyola of Los Angeles Law Review 193, 195–6; Enid Campbell, 'Lawyers' Uses of History' [1969] UQLawJl 1; (1968) 6(1) University of Queensland Law Journal 1.

    [5] (1996) 187 CLR 1 ('Wik'), 182–3 (Gummow J).

    [6] Bradley Selway, 'The Use of History and Other Facts in the Reasoning of the High Court of Australia' [2001] UTasLawRw 5; (2001) 20 University of Tasmania Law Review 129.

    [7] Courts can only ever seek an 'approximation' of the past, and can never reconstruct the past in its entirety. See discussion corresponding to footnote 11, below.

    [8] See, eg, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007 (2008).

    [9] Carl L Becker, 'What are historical facts?' in P L Snyder (ed), Detachment and the Writing of History: Essays and Letters of Carl L Becker (1958) 41, 52.

    [10] Andrew Ligertwood, Australian Evidence (4th ed, 2004) 5. Evidence scholars sometimes express this approximation in terms of mathematical probabilities: see, eg, David Hamer, 'The Civil Standard of Proof Uncertainty: Probability, Belief and Justice' [1994] SydLawRw 37; (1994) 16 Sydney Law Review 506; D H Hodgson, 'The Scales of Justice: Probability and Proof in Legal Fact-finding' (1995) 69 Australian Law Journal 731.

    [11] In the context of ascertaining the Aboriginal death toll during colonisation see Lawrence McNamara, 'History, Memory and Judgment: Holocaust Denial, The History Wars and Law's Problems with the Past' [2004] SydLawRw 16; (2004) 26 Sydney Law Review 353, 392.

    [12] Michael Kirby, 'Alex Castles, Australian Legal History and the Courts' (2005) 9 Australian Journal of Legal History 1, 12–13; Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483, 504 (Lee J).

    [13] Mabo v Queensland (No 2) (1992) 175 CLR 1 ('Mabo'); Wik (1996) 187 CLR 1. See Tom Gara, 'History, Anthropology and Native Title' in Mandy Paul and Geoffrey Gray (eds), Through a Smoky Mirror: History and Native Title (2002) 65, 66.

    [14] R S French, 'Mabo – Native Title in Australia' (Paper presented at the Landmark Cases Roundtable Conference, Constitutional Court of South Africa, Johannesburg, 10–11 December 2004) [2]–[30]; Bain Attwood, 'The Law of the Land or the Law of the Land?: History, Law and Narrative in a Settler Society' (2004) 2 History Compass 1; Gara, above n 13, 69–70; Penelope Matthew, Rosemary Hunter and Hilary Charlesworth, 'Law and History in Black and White' in Rosemary Hunter, Richard Ingleby and Richard Johnstone (eds), Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law (1995) 3, 3–27; Bain Attwood, 'Introduction – The Past as Future: Aborigines, Australia and the (dis)course of History' in Bain Attwood (ed), In the Age of Mabo: History, Aborigines and Australia, (1996) vii, xxxi–xxxiii; Selway, above n 6, 151; John Williams, 'Constitutional Intention: The Limits of Originalism' in Ngaire Naffine, Rosemary Owens and John Williams (eds), Intention in Law and Philosophy (2001) 321, 334–5.

    [15] (1889) 14 App Cas 286, 291 (Lord Watson) (Privy Council).

    [16] Mabo (1992) 175 CLR 1, 58, 69 (Brennan J); 104–9 (Deane and Gaudron JJ).

    [17] David Ritter and Frances N A Flanagan, 'Stunted Growth: the Historiography of Native Title Litigation in the Decade Since Mabo' (2003) 10 Public History Review 21, 21–3.

    [18] Gara, above n 13, 67.

    [19] David Ritter, 'Whither the Historians? The Case for Historians in the Native Title Process' [1999] IndigLawB 1; (1999) 4(17) Indigenous Law Bulletin 4, 4; Alexander Reilly, 'The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title' (2000) 28 Federal Law Review 453, 470.

    [20] There are some recent collections: Mandy Paul and Geoffrey Gray (eds), Through a Smoky Mirror: History and Native Title (2002); Christine Choo and Shawn Hollbach (eds), History and Native Title: Studies in Western Australian History (2003) vol 23; Iain McCalman and Ann McGrath (eds), Proof and Truth: The Humanist as Expert (2003); Sandy Toussaint (ed), Crossing Boundaries: Cultural, Legal, Historical and Practice Issues in Native Title (2004). See also Michael Stuckey, 'Not by Discovery but by Conquest: The Use of History and the Meaning of "Justice" in Australian Native Title Cases' (2005) 34 Common Law World Review 19; Ritter and Flanagan, above n 17; Alex Reilly and Ann Genovese, 'Claiming the Past: Historical Understanding in Australian Native Title Jurisprudence' (2004) 3 Indigenous Law Journal 19.

    [21] Cathie Clement, 'Historians and Native Title: A Personal Perspective' (2000) 91 Australian Historical Association Bulletin 86; Fiona Skyring, 'History Wars: Debates about History in the Native Title Process' in Choo and Hollbach (eds), above n 20, 71; Christine Choo, 'Working as a Historian on the Miriuwung Gajerrong Native Title Claim' in Sandy Toussaint (ed), Crossing Boundaries: Cultural, Legal, Historical and Practice Issues in Native Title (2004) 195; Michael Barker, 'Working as a Barrister on the Miriuwung Gajerrong Native Title Claim' in Sandy Toussaint (ed), Crossing Boundaries: Cultural, Legal, Historical and Practice Issues in Native Title (2004) 159.

    [22] Ann Curthoys, Ann Genovese and Alex Reilly, Rights and Redemption: History, Law and Indigenous People (2008).

    [23] Yorta Yorta [2001] FCA 45; (2001) 110 FCR 244, 264 [63] (Black CJ). Cf defamation actions, where the 'court's determination will not present a statement of what happened in the past. Rather, it is only a finding of plausibility or implausibility': McNamara, above n 11, 373.

    [24] Robert Nicholson, 'The Use of History in Proving Native Title: A Judge's Perspective' (2003) 12 Early Days Journal: Proceedings of the Royal Western Australian Historical Society 315, 316.

    [25] Hal Wootten, 'Conflicting Imperatives: Pursuing Truth in the Courts' in McCalman and McGrath (eds), above n 20, 15, 16–21.

    [26] G M Dickinson and R D Gidney, 'History and Advocacy: Some Reflections on the Historian's Role in Litigation' (1987) 68 Canadian Historical Review 576, 580.

    [27] See Reilly and Genovese, above n 20, 37.

    [28] Stuckey, above n 20, 20.

    [29] Davison, above n 1, 65. See also Ann Genovese, 'The Use of History in Native Title: Historical Perspectives' (2003) 12 Early Days Journal: Proceedings of the Royal Western Australian Historical Society 326, 329–31.

    [30] For some interesting comparative analysis, see Simon Young, The Trouble with Tradition: Native Title and Cultural Change (2008).

    [31] Members of the Yorta Yorta Aboriginal Community v State of Victoria [1998] FCA 1606 (Unreported, Olney J, 18 December 1998); Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45; (2001) 110 FCR 244 (Full Federal Court); Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422. These decisions will be footnoted hereafter as 'Yorta Yorta', with the relevant citation.

    [32] See, eg, Natasha Case, 'Tide of History or Tsunami? The Members of the Yorta Yorta Aboriginal Community v The State of Victoria & Ors (1998)' [1999] IndigLawB 9; (1999) 4(17) Indigenous Law Bulletin 20; Valerie Kerruish and Colin Perrin, 'Awash in Colonialism: A Critical Analysis of the Federal Court Decision in the Matter of the Members of Yorta Yorta Aboriginal Community v The State of Victoria & Ors' [1999] AltLawJl 1; (1999) 24 Alternative Law Journal 3; Wayne Atkinson, '"Not One Iota" of Land Justice: Reflections on the Yorta Yorta Native Title Claim 1994–2001' [2001] IndigLawB 12; (2001) 5(6) Indigenous Law Bulletin 19; James Cockayne, 'Members of the Yorta Yorta Aboriginal Community v Victoria: Indigenous and Colonial Traditions in Native Title' [2001] MelbULawRw 25; (2001) 25 Melbourne University Law Review 786; Alexander Reilly, 'History Always Repeats: Members of the Yorta Yorta Aboriginal Community v State of Victoria' [2001] IndigLawB 14; (2001) 5(6) Indigenous Law Bulletin 25; Doug Young and Tony Denholder, 'Proof of Native Title – Yorta Yorta' [2001] AUMPLawJl 24; (2001) 20 Australian Mining and Petroleum Law Journal 82; Simon Young, 'The Trouble with "Tradition": Native Title and the Yorta Yorta Decision' [2001] UWALawRw 2; (2001) 30 University of Western Australia Law Review 28; Richard Bartlett, 'An Obsession with Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta' [2003] UWALawRw 3; (2003) 31 University of Western Australia Law Review 35; Ben Golder, 'Law, History, Colonialism: An Orientalist Reading of Australian Native Title Law' [2004] DeakinLawRw 2; (2004) 9 Deakin Law Review 41; Peter Seidel, 'Native Title: The Struggle for Justice for the Yorta Yorta Nation' (2004) 29 Alternative Law Journal 70.

    [33] Wootten, above n 25, 43.

    [34] Although s 223 was amended in 1998, the changes did not affect s 223(1): See Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 433 [10] (Gleeson CJ, Gummow and Hayne JJ); Melissa Perry and Stephen Lloyd, Australian Native Title Law (2003) 19.

    [35] Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 440 [32], 451 [70], 453 [75] (Gleeson CJ, Gummow and Hayne JJ); Western Australia v Ward (2002) 213 CLR 1, 65–6 [16] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). For some discussion of the role of the common law in the interpretation of the NTA, see Maureen Tehan, 'A Hope Disillusioned, An Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act' [2003] MelbULawRw 19; (2003) 27 Melbourne University Law Review 523; Sean Brennan, 'Native Title in the High Court of Australia a Decade after Mabo' (2003) 14 Public Law Review 209, 209–15.

    [36] Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457, 494 [128], 493 [120] (cf at common law) (Selway J). See also Gumana v Northern Territory of Australia (2007) 158 FCR 359, 383[127] (French, Finn and Sundberg JJ).

    [37] Mabo (1992) 175 CLR 1, 58 (Brennan J), 110 (Deane and Gaudron JJ); Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96, 128 [46] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); Yanner v Eaton (1999) 201 CLR 351, 382–3 [72] (Gummow J); Wik (1996) 187 CLR 1, 169 (Gummow J).

    [38] Western Australia v Ward (2002) 213 CLR 1, 66 [18] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457, 497–9 [144]–[148] (Selway J). See also Perry and Lloyd, above n 34, 764; Lisa Wright, 'Themes Emerging from the High Court's Recent Native Title Decisions' (2003) 1 National Native Title Tribunal Occasional Papers Series, 18–19 <> at 19 April 2008.

    [39] Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457, 498 [146]. The nature of these inquiries was not disputed on appeal, although some of his Honour's specific findings in relation to s 223(1)(b) were challenged: see Gumana v Northern Territory of Australia (2007) 158 FCR 359, 385-93 [135]–[163].

    [40] Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457, 498 [145]. For the High Court's analysis of paragraph (c), see Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 453–4 [76]–[77] (Gleeson CJ, Gummow and Hayne JJ). Cf McHugh J's vehement criticisms at 467–8 [126]–[136].

    [41] Commonwealth v Yarmirr (2001) 208 CLR 1, 39 [15] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Daniel v Western Australia [2003] FCA 666 (Unreported, Nicholson J, 3 July 2003) [136]; Perry and Lloyd, above n 34, 764.

    [42] Western Australia v Ward (2002) 213 CLR 1, 91 [82], 95 [95] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Daniel v Western Australia [2003] FCA 666 (Unreported, Nicholson J, 3 July 2003) [136]. Some have argued that this particularisation of rights and interests compounds the problems of proof: Bartlett, above n 32, 44–6; Lisa Strelein, 'Conceptualising Native Title' [2001] SydLawRw 4; (2001) 23 Sydney Law Review 95, 103–4; Sky Mykyta, 'Losing Sight of the Big Picture: The Narrowing of Native Title in Australia' (2005) 36 Ottawa Law Review 93, 112–14.

    [43] Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422. Note that when I refer to the 'majority' of the High Court I am referring to the joint judgment of Gleeson CJ, Gummow and Hayne JJ. McHugh and Callinan JJ agreed with the result but delivered separate judgments.

    [44] Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 441–4 [38]–[44] (Gleeson CJ, Gummow and Hayne JJ).

    [45] Ibid 444 [44].

    [46] Ibid 444 [46].

    [47] Ibid 444 [47].

    [48] Ibid.

    [49] Ibid 447 [56].

    [50] Reilly and Genovese, above n 20, 32.

    [51] Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 456–7 [87]–[89] (Gleeson CJ, Gummow and Hayne JJ).

    [52] Ibid 455 [83], 457 [90].

    [53] As to the nature of this connection, see Western Australia v Ward (2002) 213 CLR 1, 84–6 [57]–[64] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

    [54] Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 456 [86] (Gleeson CJ, Gummow and Hayne JJ).

    [55] Michael Black, 'Developments in Practice and Procedure in Native Title Cases' (2002) 13 Public Law Review 16.

    [56] Native Title Act 1993 (Cth) s 82.

    [57] Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [17]. As to the burden of proof, see Daniel v Western Australia [2003] FCA 666 (Unreported, Nicholson J, 3 July 2003) [146]–[148]; Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316, 351–2 [116]–[120] (Beaumont and von Doussa JJ); Yorta Yorta [2001] FCA 45; (2001) 110 FCR 244, 284–6 [151]–[159] (Branson and Katz JJ).

    [58] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 343–4 (Latham CJ), 361–3 (Dixon J); Bater v Bater [1950] 2 All ER 458, 459 (Denning LJ).

    [59] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ). See also Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1, 115–18 [346]–[352] (O'Loughlin J); G v H [1994] HCA 48; (1994) 181 CLR 387, 399 (Deane, Dawson and Gaudron JJ); Cassell v The Queen (2000) 201 CLR 189, 193 [18] (Gleeson CJ, Gaudron, McHugh and Gummow JJ); Shaw v Wolf [1998] FCA 389; (1998) 83 FCR 113, 123–5 (Merkel J).

    [60] Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 454 [80] (Gleeson CJ, Gummow and Hayne JJ).

    [61] De Rose v State of South Australia [2002] FCA 1342 (Unreported, O'Loughlin J, 1 November 2002) [570]. This decision and others sharing the same case history will be hereafter referred to as 'De Rose' with the relevant citation.

    [62] (1994) 34 NSWLR 572.

    [63] Ibid 586 (Kirby P).

    [64] Ibid 587. Note that Kirby P referred to John Henry Wigmore, Wigmore on Evidence (3rd ed, 1961) vol 2, § 437, and also earlier authorities such as Cloverdell Lumber Co Pty Ltd v Abbott [1924] HCA 4; (1924) 34 CLR 122, 137–8 (Isaacs J).

    [65] Mason v Tritton (1994) 34 NSWLR 572, 588 (Kirby P).

    [66] Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457, 510 [196] (Selway J). See also De Rose [2002] FCA 1342 (Unreported, O'Loughlin J, 1 November 2002) [570].

    [67] Gumana v Northern Territory of Australia [2005] FCA 50; (2005) 141 FCR 457, 510 [194].

    [68] Ibid 510 [197], 511 [201]. This inferential process adopted by Selway J was not challenged on appeal. See also Commonwealth v Yarmirr [1999] FCA 1668; (2000) 101 FCR 171, 194 [66] (Beaumont and von Doussa JJ); De Rose [2003] FCAFC 286; (2003) 133 FCR 325, 402 [259] (Wilcox, Sackville and Merkel JJ).

    [69] [2007] FCA 31 [341]–[350].

    [70] Ibid.

    [71] Ligertwood, above n 10, 14.

    [72] George F James, 'Relevancy, Probability and the Law' (1941) 29 California Law Review 689, 696.

    [73] W A N Wells, Natural Logic, Judicial Proof and Objective Facts (1994) 3, 6–12, 83–4.

    [74] Richard Evans, 'History, Memory and the Law: The Historian as Expert Witness' (2002) 41 History and Theory 326, 333–5; Leora Bilsky, 'Judging and Understanding' (2001) 19 Law and History Review 183.

    [75] [2000] FCA 1084; (2000) 103 FCR 1.

    [76] Ibid 243–62 [782]–[838], 387 [1246]; Arthur Glass, 'Making the Facts Speak' in McCalman and McGrath (eds), above n 20, 123, 127; Mark Dreyfus, 'Historians in Court' in McCalman and McGrath (eds), above n 20, 71, 71–2; Ann Curthoys and Ann Genovese, 'Evidence and Narrative: History and Law' in McCalman and McGrath (eds), above n 20, 83, 88.

    [77] Glass, above n 76, 130; Cockayne, above n 32, 794, 796–8.

    [78] Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [121], [129]. See also Yorta Yorta [2001] FCA 45; (2001) 110 FCR 244, 260 [51] (Black CJ).

    [79] Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [121], [129].

    [80] Yorta Yorta [2001] FCA 45; (2001) 110 FCR 244, 269 [84] (Black CJ). See also 260 [51].

    [81] Ibid 263 [59]. See also 260 [50], 263 [59]–[61].

    [82] I am using the term 'inference' in the Wigmorean sense, which assumes it is possible to discern some rational relationship between the evidence and the factual propositions drawn from this evidence. See Ligertwood, above n 10, 7–12.

    [83] John Henry Wigmore, The Science of Judicial Proof (3rd ed, 1937); Terence Anderson and William Twining, Analysis of Evidence: How to do Things with Facts (1991) 136–53; Andrew Palmer, Proof and the Preparation of Trials (2003) 61–83, 169–73; Ligertwood, above n 10, 7–12.

    [84] Ligertwood, above n 10, 13–14.

    [85] James, above n 72, 695.

    [86] Christine Choo and Margaret O'Connell, 'Historical Narrative and Proof of Native Title' in Paul and Gray (eds), above n 20, 11, 17–20; Curthoys and Genovese, above n 76, 87–8.

    [87] Quick v Stoland [1998] FCA 1200; (1998) 87 FCR 371, 373–4 (Branson J); Neowarra v Western Australia (No 1) [2003] FCA 1399; (2003) 134 FCR 208, 217–19 [22]–[27] (Sundberg J); Jango v Northern Territory of Australia (No 2) [2004] FCA 1004 (Unreported, Sackville J, 3 August 2004) [11], [33]–[34], [54].

    [88] Nicholson, above n 24, 322.

    [89] See, eg, Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491 (Dixon CJ); Weal v Bottom (1966) 40 ALJR 436, 438–9 (Barwick CJ), 442 (Taylor J); Murphy v R [1989] HCA 28; (1989) 167 CLR 94, 111 (Mason CJ and Toohey J), 130–1 (Dawson J); R v Bonython (1984) 38 SASR 45, 46–7 (King CJ); Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, 336 [53] (Gaudron and Gummow JJ).

    [90] Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402, 416 [82] (Gaudron J), 426–7 [153]–[158] (Gummow and Callinan JJ); HG v The Queen [1999] HCA 2; (1999) 197 CLR 414, 427 [40] (Gleeson CJ), 432 [58] (Gaudron J).

    [91] (1998) 43 NSWLR 364, 371. Young J's decision was followed by Hely J in Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243.

    [92] Bellevue Crescent v Marland Holdings (1998) 43 NSWLR 364, 371.

    [93] Ibid.

    [94] Ibid. Young J was considering admissibility under s 79 of the Evidence Act 1995 (NSW), but this is identical to the Evidence Act 1995 (Cth).

    [95] See, eg, (at common law) Milirrpum v Nabalco Pty Ltd ('The Gove Case') (1971) 17 FLR 141, 161–2 (Blackburn J); Reid v Kerr (1974) 9 SASR 367, 370 (Wells J); Borowski v Quayle [1966] VicRp 54; [1966] VR 382, 385–9. Cf later authorities under the Uniform Evidence Acts (and changes brought about by s 60): R v Welsh (1996) 90 A Crim R 364, 366–9 (Hunt CJ); Quick v Stoland [1998] FCA 1200; (1998) 87 FCR 371, 377–8 (Branson J), 382 (Finkelstein J); Daniel v Western Australia [2000] FCA 858; (2000) 178 ALR 542, 547 [19]–[21] (Nicholson J); Lardil, Kaiadilt, Yangkaal, Gangalidda Peoples v Queesland [2000] FCA 1548 (Unreported, Cooper J, 1 November 2000) [1]–[16]; Harrington-Smith on behalf of the Wongatha People v Western Australia (No 7) [2003] FCA 893; (2003) 130 FCR 424, 431–2 [35]–[39] (Lindgren J).

    [96] Bellevue Crescent v Marland Holdings (1998) 43 NSWLR 364, 371. While Young J's judgment was upheld on appeal, note that the Court of Appeal did take a different view of the admissibility of expert historical evidence under s 79: Tomark Pty Ltd v Bellevue Crescent Pty Ltd [1999] NSWCA 347, [1]–[2], [20]–[43].

    [97] [2000] FCA 394; (2000) 97 FCR 453, 514 [250], 523 [298]. As to the disputed historical interpretation in Wik, see Jonathan Fulcher, 'Sui Generis History: The Use of History in Wik' in G Hiley (ed), The Wik Case: Issues and Implications (1997) 51; Jonathan Fulcher, 'The Wik Judgment, Pastoral Leases and Colonial Office Policy and Intention in NSW in the 1840s' (1998) 4 Australian Journal of Legal History 33; Gim Del Villar, 'Pastoral Leases and Native Title: A Critique of Ward and Wik' [2004] BondLawRw 2; (2004) 16 Bond Law Review 29, 44–51; Selway, above n 6, 151–2.

    [98] See, eg, De Rose [2002] FCA 1342 (Unreported, O'Loughlin J, 1 November 2002) [317]–[321]; Daniel v Western Australia [2003] FCA 666 (Unreported, Nicholson J, 3 July 2003) [149]–[201]; Neowarra v State of Western Australia [2003] FCA 1402 (Unreported, Sundberg J, 8 December 2003) [50]–[61].

    [99] [2003] FCA 893; (2003) 130 FCR 424, 429 [26].

    [100] Ibid 432–3 [40].

    [101] Ibid.

    [102] Ibid 433 [41].

    [103] Ibid 433 [42]. See also Lindgren J's comments on this in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; [2007] 238 ALR 1, 116 [433].

    [104] Cf Jango v Northern Territory (No 4) [2004] FCA 1539; (2004) 214 ALR 608, 612–13 [25]–[31], where Sackville J held (at 613 [29]) that the task of 'determining the primary facts' (eg, 'dates of birth, family links or the observances of particular practices') from historical documentation was not a task that fell within the specialised knowledge of an anthropologist. While noting that 'professional experience' would be helpful to locate the documents, '[o]nce the source materials are admitted into evidence, it is for the Court to determine whether they establish the primary facts relied on by the applicants to establish their claims.' However, Sackville J (analogising accounting evidence: Potts v Miller [1940] HCA 43; (1940) 64 CLR 282) noted that in some instances anthropologists may be able to offer 'analysis' or to 'summarise the effect of complex or voluminous primary evidence' (at 613 [27]).

    [105] Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [129].

    [106] This has been attributed to appellate caution: Harriet Ketley and Clare Ozich, in Choo and Hollbach (eds), above n 20, 83, 90; Bartlett, above n 32, 38.

    [107] Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [106]. See also [21]–[22].

    [108] Ibid [33]–[34], [106], [53]–[54], [60]–[61], [63], [66]–[67], [73], [101], [106]–[108].

    [109] Ibid [106].

    [110] Ibid [25].

    [111] Ibid [52]–[88].

    [112] Ibid [106].

    [113] Ibid [121].

    [114] Ibid [118].

    [115] Ibid [119]; Kerruish and Perrin, above n 32, 5.

    [116] Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [119].

    [117] Ibid [120]–[121].

    [118] Ibid [121].

    [119] Ibid [122]–[128].

    [120] Ibid [23].

    [121] Ibid [55], [58], [62].

    [122] Ibid [54].

    [123] See, eg, Samuel Furphy, 'Edward Micklethwaite Curr's "Recollections of Squatting": Biography, History and Native Title' in Penelope Edmonds and Samuel Furphy (eds), Rethinking Colonial Histories: New and Alternate Approaches (2006) 33.

    [124] Bain Attwood, 'Mabo, Australia and the End of History' in Bain Attwood (ed), In the Age of Mabo: History, Aborigines and Australia (1996) 100, 103; Ann McGrath, 'Contested Ground: what is "Aboriginal History"?', in Ann McGrath (ed), Contested Ground: Australian Aborigines Under the British Crown (1995) 359, 359–97.

    [125] Gara, above n 13, 69.

    [126] Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [53].

    [127] Ibid [60].

    [128] Ibid [54].

    [129] Ibid [33].

    [130] Roderic Pitty, 'A Poverty of Evidence: Abusing Law and History in Yorta Yorta v Victoria (1998)' (1999) 5 Australian Journal of Legal History 41, 43–52.

    [131] Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [117].

    [132] Melissa Castan and Sue Kee, 'The Jurisprudence of Denial' (2003) 28 Alternative Law Journal 83, 86.

    [133] Bruce Buchan, 'Withstanding the Tide of History: The Yorta Yorta Case and Indigenous Sovereignty' (2002) 1(2) Borderlands E-Journal [28]

    <> at 19 April 2008.

    [134] Castan and Kee, above n 132, 86.

    [135] Kerruish and Perrin, above n 32, 6; Golder, above n 32, 52.

    [136] Yorta Yorta [2001] FCA 45; (2001) 110 FCR 244, 261–3 [55]–[60] (Black CJ).

    [137] Ibid 262 [58].

    [138] Ibid 266 [74].

    [139] Ibid.

    [140] Ibid 266 [73].

    [141] See Yorta Yorta [1998] FCA 1606 (Unreported, Olney J, 18 December 1998) [118].

    [142] Yorta Yorta [2001] FCA 45; (2001) 110 FCR 244, 266 [73] (Black CJ).

    [143] [2003] FCA 666 (Unreported, Nicholson J, 3 July 2003).

    [144] Ibid [149].

    [145] Ibid.

    [146] Ibid [10], [150]–[151], [175].

    [147] Ibid [219].

    [148] Ibid [415]–[429].

    [149] Ibid [415]–[424].

    [150] Ibid [421]. See also [424]. The Full Federal Court upheld Nicholson J's findings in relation to the continuity of connection, and did not dispute the general approach he took to the historical evidence. See Moses v State of Western Australia [2007] FCAFC 78; (2007) 160 FCR 148, 209 [248]–[249] and more generally 221-32 [301]–[344].

    [151] See David Ritter, 'The Judgement of the World: The Yorta Yorta Case and the "Tide of History"' (2004) 35(123) Australian Historical Studies 106, 121.

    [152] [2004] FCA 374 (Unreported, Madgwick J, 31 March 2004).

    [153] Ibid [9]–[10] (the legislation was the Aboriginal Land Rights Act 1983 (NSW)).

    [154] Ibid [10]–[11].

    [155] Ibid [109]. See also [110]–[117].

    [156] Ibid [43].

    [157] Ibid [111]. See also [116]–[117].

    [158] Bartlett, above n 32, 45–6; French, above n 14, [73].

    [159] For a discussion of judicial accountability in the interpretation of 'tradition', see Anthony Connolly, 'Conceiving of Tradition: Dynamics of Judicial Interpretation and Explanation in Native Title Law' in Suzanne Corcoran and Stephen Bottomley (eds), Interpreting Statutes (2005) 118.

    [160] Issues of process, including the appropriate scope of judicial notice, remain undefined: Selway, above n 6, 130–5; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, 184 [165] (Callinan J); Graham Mullane, 'Evidence of Social Science Research: Law, Practice and Options in the Family Court of Australia' (1998) 72 Australian Law Journal 434; M H Ogilvie, 'Case Notes: Evidence – Judicial Notice – Historical Documents and Historical Facts – Indian Treaty Rights' (1986) 64 Canadian Bar Review 183.

    [161] For a discussion of 'possessory title' see Strelein, above n 42, 108–11; Alex Reilly, 'From a Jurisprudence of Regret to a Regrettable Jurisprudence: Shaping Native Title from Mabo to Ward' (2002) 9(4) E Law - Murdoch University Electronic Journal of Law [73]–[80] <> at 19 April 2008; Kent McNeil, 'Aboriginal Title and Aboriginal Rights: What's the Connection?' (1997) 36 Alberta Law Review 117.

    [162] Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555, 574–5 (Gummow J).

    [163] K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, 315 (Mason J); CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 348, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). See also D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006) 71–2, 114–15; F A R Bennion, Statutory Interpretation: A Code (4th ed, 2002) 501–3.

    [164] See Native Title Act 1993 (Cth) Preamble. See also the Explanatory Memorandum to the Act, which is referred to in Yorta Yorta [2001] FCA 45; (2001) 110 FCR 244, 276.

    [165] See, eg, Peter Burke (ed), New Perspectives on Historical Writing (1991); Keith Jenkins, On 'What is History?': From Carr and Elton to Rorty and White (1995).

    [166] Martin, above n 2, 1533–4; Donald P Boyle, 'Philosophy, History, and Judging' (1988) 30 William and Mary Law Review 181, 182–3; C Behan McCullagh, The Truth of History (1998) 41–2; Davison, above n 1, 53–4; Michael Oakeshott, 'The Activity of being an Historian' in Michael Oakeshott (ed), Rationalism in Politics and Other Essays (1962) 137.

    [167] Daniel A Farber, 'Adjudication of Things Past: Reflections on History as Evidence' (1998) 49 Hastings Law Journal 1009, 1027. The impact of postmodernism on history has generated an enormous body of literature: see, eg, Thomas L Haskell, 'Objectivity is Not Neutrality: Rhetoric vs. Practice in Peter Novick's That Noble Dream' (1990) 29 History and Theory 129; Joyce Appleby, Lynn Hunt and Margaret Jacob, Telling the Truth About History (1994) 198–237.

    [168] Gary Goodpaster, 'On the Theory of American Adversary Criminal Trial' (1987) 78 Journal of Criminal Law and Criminology 118; Raymond A Belliotti, 'Our Adversary System: In Search of a Foundation' (1988) 1 Canadian Journal of Law and Jurisprudence 19.

    [169] See E H Carr's description of when a fact becomes a 'historical fact': E H Carr, What is History? (1961) 10–15. See also R C Lewontin, 'Facts and Factitious in Natural Sciences' (1991) 18 Critical Inquiry 140, 147–8.

    [170] Ronald J Allen, 'The Nature of Juridical Proof' (1991) 13 Cardozo Law Review 373, 387–93; Hamar Foster and Alan Grove, 'Looking Behind Masks: A Land Claims Discussion Paper for Researchers, Lawyers and their Employers' (1993) 27 University of British Columbia Law Review 213, 220.

    [171] Allen, above n 170, 391.

    [172] Alexander Reilly, 'How Mabo Helps Us Forget' [2006] MqLawJl 4; (2006) 6 Macquarie Law Journal 25, 28; Evans, above n 74, 333–5.

    [173] Allen, above n 170, 390. Cf Asher Maoz, 'Historical Adjudication: Courts of Law, Commissions of Inquiry, and "Historical Truth"' (2000) 18 Law and History Review 559, 605.

    [174] Allen, above n 170, 387–91; Farber, above n 167, 1025–7.

    [175] Note that some facts are 'indispensable intermediate facts': Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.

    [176] See, eg, Robert Manne (ed), Whitewash: On Keith Windschuttle's Fabrication of Aboriginal History (2003); Stuart Macintyre and Anna Clark, The History Wars (2003).

    [177] Keith Windschuttle, The Fabrication of Aboriginal History, Volume One, Van Diemen's Land 1803–1847 (2002).

    [178] Reilly and Genovese, above n 20, 36. See also David Ritter, 'No Title Without History' in Paul and Gray (eds), above n 20, 81.

    [179] Reilly and Genovese, above n 20, 29. See Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 444 [44] (Gleeson CJ, Gummow and Hayne JJ). See also discussion in Part I, above.

    [180] Reilly and Genovese, above n 20, 29.

    [181] Ibid 30, 29.

    [182] Ibid 29.

    [183] Ibid 37.

    [184] Ibid 35.

    [185] Ibid.

    [186] Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 456 [89] (Gleeson CJ, Gummow and Hayne JJ).

    [187] Yorta Yorta [2002] HCA 58; (2002) 214 CLR 422, 460 [103] (Gaudron and Kirby JJ).

    [188] Ibid.

    [189] Ibid 466 [122] (referring to the judgment of Olney J at first instance).

    [190] Ibid 460 [104].

    [191] Ibid 466 [124] (emphasis added).

    [192] Ibid 466 [123] (emphasis added).

    [193] Ibid 463 [114].

    [194] Ibid 464 [115].

    [195] Ibid 463 [113].

    [196] Ibid 464 [114].

    [197] Ibid 463 [113].

    [198] [2007] FCAFC 78; (2007) 160 FCR 148, 233 [352].

    [199] Ibid 234 [358].

    [200] De Rose [2003] FCAFC 286; (2003) 133 FCR 325, 394 [224], 396–7 [238] (Wilcox, Sackville and Merkel JJ); De Rose [2002] FCA 1342 (Unreported, O'Loughlin J, 1 November 2002) [316], [346], [372], [376].

    [201] De Rose [2002] FCA 1342 (Unreported, O'Loughlin J, 1 November 2002) [345]–[346].

    [202] Ibid [372].

    [203] Ibid [346].

    [204] See De Rose (No 2) (2005) 145 FCR 290, 296 [16]–[17].

    [205] De Rose [2003] FCAFC 286; (2003) 133 FCR 325, 394 [224]. See also 393–5 [220]–[228] (Wilcox, Sackville and Merkel JJ).

    [206] Ibid 398 [245] 401–2 [255]–[259]; De Rose (No 2) (2005) 145 FCR 290, 323 [113]. Note the possibility of connection via 'incorporation', which circumvents the need to rely on connection by virtue of the Western Desert Bloc: De Rose [2002] FCA 1342 (Unreported, O'Loughlin J, 1 November 2002) [346]; De Rose [2003] FCAFC 286; (2003) 133 FCR 325, 398–9 [243]–[246] (Wilcox, Sackville and Merkel JJ).

    [207] De Rose [2003] FCAFC 286; (2003) 133 FCR 325, 409 [277]–[279], 417 [312] (Wilcox, Sackville and Merkel JJ), where Yorta Yorta is distinguished.

    [208] The pastoralists' application for special leave to appeal was refused by the High Court on 10 February 2006. Note comments by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31; (2007) 238 ALR 1, 50 [99], 94 [304].

    [209] Peter Veth, '"Abandonment" or Maintenance of Country? A Critical Examination of Mobility Patterns and Implications for Native Title' (2003) 2(22) Land, Rights, Laws: Issues of Native Title <> at 19 April 2008.

    [210] (2006) 153 FCR 120.

    [211] Bodney v Bennell [2008] FCAFC 63; (2008) 249 ALR 300, discussed below.

    [212] Samantha Hepburn, 'Social Continuity and Forced Change: The Noongar Case' (2006) 174 Deakin Law Review 173, 173. See also Zoey Irvin, 'Wilcox J and Olney J: A Comparative Analysis of Historical Assumptions in the Yorta Yorta and Single Noongar Decisions' [2007] IndigLawB 6; (2006) 6(24) Indigenous Law Bulletin 24.

    [213] Bennell v State of Western Australia (2006) 153 FCR 120, 317 [776].

    [214] Ibid 317 [776].

    [215] Ibid 317 [777].

    [216] Ibid 318 [785].

    [217] Ibid 319 [791].

    [218] Bodney v Bennell [2008] FCAFC 63; (2008) 249 ALR 300, 318 [73].

    [219] Ibid 318 [74].

    [220] Ibid 324–5 [97]. But see also 328 [116].

    [221] Risk v Northern Territory of Australia [2006] FCA 404 (Unreported, Dowsett J, 13 April 2006) [805].

    [222] Ibid [812]–[840].

    [223] Risk v Northern Territory of Australia [2007] FCAFC 46 (Unreported, French, Finn and Sundberg JJ, 5 April 2007) [25].

    [224] Ibid [82].

    [225] Ibid [83]–[85].

    [226] Ibid [98]. An application for special leave to the High Court was dismissed by majority on 31 August 2007.

    [227] Yorta Yorta [2001] FCA 45; (2001) 110 FCR 244, 263 [59] (Black CJ).

    [228] Bennion, above n 163, 499–508.

    [229] Connolly, above n 159, 118–21.

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