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Blowes, Robert; Trigger, David --- "Experts, Documents and Lawyers in Native Title Claims - The Implications of Daniel v State of Western Australia" [2000] IndigLawB 21; (2000) 4(28) Indigenous Law Bulletin 4

Experts, Documents and Lawyers in Native Title Claims –

The Implications of Daniel v State of Western Australia

By Robert Blowes and David Trigger

Social scientists such as anthropologists, linguists and historians play an important role in researching and producing genealogies, reports and other claim material which are submitted as evidence in native title claims. Being expert witnesses for Aboriginal claimants (or any other party) means that they may also be cross-examined on their evidence by opposing counsel. The recent Federal Court decision Daniel v State of Western Australia[1] highlights the need to carefully manage communications which occur in the course of researching, documenting and conducting native title claims to delay, or avoid, losing the protection of ‘client privilege’[2] for confidential documents such as anthropological field notes and other research materials. The case centres on the question of whether various documents can be kept confidential, and if so, for how long. The case is essential reading for lawyers, anthropologists and other experts involved in this area, and raises some key issues concerning the interests of Aboriginal claimants in controlling information relevant to their claims. It also foregrounds the sometimes different perspectives which lawyers and expert social scientists may bring to native title proceedings.

Daniel v State of Western Australia.

The decision was the result of a subpoena served in late 1999 by the State of Western Australia on an anthropologist (Michael Robinson) who was engaged as an expert in relation to the Ngarluma and Yindjibarndi native title determination application, and who is scheduled to appear as an expert witness in the claim in the Federal Court.

Normally, counsel for the State may cross-examine an expert witness on the claim materials and Aboriginal claimant's traditional evidence after the hearing of traditional evidence. In this case however, the State applied for access to Robinson's primary research materials before the trial so that counsel for the Crown could use them to cross-examine the Aboriginal witnesses. Nicholson J refused this application, ruling that the notes in part were protected by client privilege until the expert was called to give evidence. Under the rules of evidence,[3] calling an expert as a witness will involve waiving that protection, at least in respect of those parts of the research materials that the expert relies upon for his or her testimony. However, not everything in the notes and other recordings is protected under the ruling. Some parts of the notes are to be made available immediately. This will require an evaluation of each entry in the researcher’s field books. Parts of the notes will need to be physically covered or separated in order to implement the ruling.

Anything that is not the record of a ‘communication’ by applicants to the expert for the ‘dominant purpose’ of the native title claim is not protected.[4] Nicholson J held that ‘observations by Mr Robinson are not communications to which privilege attaches’.[5] Nicholson J illustrated the distinction he drew between ‘communications’ and ‘observations’ in his ruling in relation to two video tapes. One video tape was held not to be privileged because it was not a ‘communication’ but rather ‘the observation of the behaviour of an applicant during an inspection of an area’; it was ‘a fact observed’ rather than ‘an actual communication’. This suggests that those parts of the field notes that record such ‘observations’ are also not protected under the ruling.

Such a distinction, in the context of anthropological research methodologies, is in our view both a very fine and artificial one. It is to be hoped that the distinction does not find its way into settled law. If an individual demonstrates something to a researcher, or does something in a context knowing that the researcher is an observer, it makes no difference, it seems to us, that no words are spoken or recorded.

Recordings in the notes, of communications between the researcher and solicitors and counsel for the applicants for the purposes of legal advice, were held to be privileged.

The field notes also included a record of communications from applicants for the purposes of separate heritage surveys which were undertaken to enable the applicants’ solicitors to advise in relation to certain development projects. Heritage survey reports were subsequently provided to a development proponent. The Court left open an opportunity for the State to argue that the publication of the survey reports to the developer constituted a waiver of privilege in the source material.

The Court indicated it would ensure that the State and other respondents would be provided with an opportunity to recall Aboriginal claimants for cross-examination in relation to the primary research materials. In other words, the ruling only prevents cross-examination on research notes during the presentation of claimants' cultural evidence, but not subsequently. This may involve claimants having to reappear for further cross-examination on material contained in the researcher's notes well after they have given their initial evidence. The Court suggested that the claimants should make the documents available to the State at the close of the traditional evidence, rather than waiting until the expert gives evidence. This would avoid any risk of any further delay to allow the State time to consider the documents.

Robinson also (unsuccessfully) claimed protection for his field notes on the basis that they were subject to ‘public interest immunity’; an argument similar to that made unsuccessfully in a Northern Territory case in the 1980s.[6] In assessing a public interest immunity claim, a court will balance any competing public interest which requires that the document not be produced (such as the need for maintaining confidentiality between anthropologists and informants), against the public interest that a court should not be denied access to relevant evidence. It is now settled law that the public interest in having cases decided on the basis of all relevant evidence will prevail.

The Relationship Between Primary Research Data and an Expert’s Conclusions

The expectation of the State in Western Australia seems to be that there will be a factual basis in primary field notes and tape recordings for the conclusions reached by an expert witness such as an anthropologist. This is broadly a reasonable expectation, in the sense that primary research materials constitute the empirical basis for conclusions. However, those materials are properly understood as part of an overall body of data which is necessarily neither internally consistent nor the complete record upon which the expert has relied. To quote from a recent article addressing other aspects of anthropological practice in this arena:

While each researcher will differ ..., we can probably safely assume that ... field notes will include a host of interpretive and speculative jottings, as well as accounts of what people among those being researched have said and done. Field notes may include questions that researchers ask themselves about possible interpretations of the material being recorded from social action. The notes might also encompass quotations or paraphrasings from relevant anthropological literature, i.e. ideas and concepts which the researcher has in mind while recording information among the communities with whom the work is being carried out.[7]

Thus, primary notes and recordings are relied upon by the anthropologist in the sense that they assist in the formulation of general conclusions – they are not representative of the total set of communications or observations that inform the researcher’s final conclusions. Not all information is recorded, nor is it possible to link all interpretations to particular pieces of data taken in isolation.

Indeed, primary research materials may well include quotations or descriptions of behaviours which are not consistent with the researcher’s final opinions and conclusions. There will be a wide range of material that has been collected in a broadly inclusive fashion by the researcher, as this approach enables distillation of mature conclusions at a later date. Some statements from informants may well be discarded or relegated to a position of less significance than views from a larger number of people or perhaps from individuals who the investigator regards as especially authoritative on a particular subject.

A cross-examiner should be wary of false assumptions about this kind of information. Inconsistencies between small and isolated pieces of data from field notes and final opinions will often be readily explicable by reference to the broad interpretive process at the heart of social analysis.

Private Information Contained in Primary Research Material

Some of the material recorded by a researcher investigating native title may be sensitive or private in that it is normally only expressed in restricted settings with particular people present.

Field notes will ordinarily reflect a diversity of views or disagreements among claimants about various aspects of Indigenous law. A researcher needs to record and consider this information in order to gain an understanding of native title issues in a particular community. However, it is potentially highly disruptive of social relations among the Aboriginal community for that information to be made public. It will usually be important for anthropologists that notes and recordings do not lose the confidentiality understood to obtain in the circumstances where people have spoken about themselves and others. The task of gaining a mature understanding of native title matters commonly requires exposure by the researcher to the fluid processes of social life and community discourses. In simple terms, the researcher will very likely be told things not meant for broad public consumption.

In the light of the recent judgement, it is likely that the researcher creating field notes may be caught in an obvious practical conflict between the methodological requirements of his or her discipline, and the fact that in the legal process, it is unlikely that any understanding as to confidentiality will be respected.

Get it Right, from the Start

It is the responsibility of the native title applicants’ legal representative to understand the requirements for proving the existence and content of native title in a particular case. He or she must decide exactly which issues need to be the subject of expert evidence, and then draft formal terms of reference that will set the parameters for the research and the report of the expert.

This is not to say that the expert should have no say in these matters. The particular qualifications of the expert to be involved, and the circumstances of the claimant group and the claim area will affect what the expert might reasonably be asked to do. The scope of the work will also be affected by time and funding constraints. We would recommend that the legal representatives confer with the researcher as to the appropriate and realistic scope of his or her research and report before settling the terms of reference.

The terms of reference, that is the brief which defines the scope of the expert’s report, are critical. The original and supplementary versions of this, whether communicated in written or oral form, must be appended to or summarised in the expert’s report. A casual or ill-informed approach to developing terms of reference, or a string of indecisive, inconsistent or incoherent communications will risk embarrassing the claim and those involved. Both lawyers and experts should be aware that reports of expert witnesses must comply with the Federal Court Practice Direction entitled ‘Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia’.[8]

Records Management

An expert researcher should at all times bear in mind that all records created in relation to the research effort are likely to eventually become available for inspection by all parties and by the court. Appropriately detached professionalism is called for in all aspects of the involvement of the researcher, not just in relation to the final report and performance in the witness box, but also in relation to the creation of field notes and any other documents. The expert should make transparent his or her independent consideration of the broad range of material that will typically be available.

The question of whether a researcher refers in a report to specific field books or other documents should be considered carefully. On the one hand, it is normal practice in anthropology and other social sciences to support propositions with illustrative data and refer to where those data are available. On the other hand, this will expose the primary source documents to discovery as a basis for cross-examination of claimants. It is one thing for an anthropologist to be cross-examined on such material. He or she may be quite comfortable with the prospect. It is another thing to unwittingly facilitate a difficult cross-examination of particular claimants.

Lawyers and the Finalising of Expert Reports

Lawyers need to maintain a careful distance from an expert’s research and the production of the report so as to avoid compromising the evidence and credibility of the expert.

There is a limit to the extent to which communications between lawyers and experts can be protected from discovery.[9] The applicants’ legal representatives should not in any sense ‘settle’ an expert report, and an expert should reject any attempt by a lawyer to influence the opinions expressed in a report. The report of the expert and the opinions in it are appropriately those of the expert. It is the expert who stands to be cross-examined, not the lawyer. It is the expert who must answer truthfully any questions about matters that have influenced the formation of opinions expressed in the report. Everybody except the respondents will be embarrassed by answers that suggest an inappropriate involvement of lawyers in the preparation of a report filed in support of a native title claim.

The lawyer’s role is to provide advice about the nature of the proceedings, the practices and procedures of the court and the trial process, the legal relevance of issues arising in the case, what is required by the terms of reference, the rules of evidence, and about what is generally expected of an expert witness. It is appropriate to provide such advice in writing or in conference with the expert or in response to a draft of a report. Such communications will always remain privileged. But to any extent that they form a basis for the content of opinions expressed in the report, such communications may have the same status as any other primary sources on which the report is based, and be subject to disclosure, at least after the report is tendered and the expert commences giving evidence.

It may be appropriate for a lawyer to review an expert witness report and to raise issues in light of the terms of reference or the requirements of the case that have not been covered, or which might be given further consideration by the expert. It would be inappropriate to purport to give instructions to or seek to influence the form or content of the expression of relevant opinions.[10]

Peer Review

It is common, perhaps even standard or best practice in a professional academic context, for papers prepared by an expert to be ‘peer reviewed’ prior to being finalised or published. In an academic context, peer review is a process designed to test and maintain standards of academic work. Peer review involves communications with and by the author and provides the author with an opportunity to defend, or to alter, his or her opinions on the basis of peer comment or in response to peer criticism.

The context of preparing a report to form part of the evidence of an expert witness in a contested Federal Court hearing of a native title determination application is very different, and different considerations arise in relation to the review of that report by other experts.

The reason the context is so different from the academic (or other) setting, and the reason why peer review may have substantial ramifications, is that resulting material is likely to be ‘discoverable’. If communications have not been carried out via the conduit of legal representatives, the entire set of communications involved in the review process may be made available if sought by a respondent party to a claim.

Once made available to another party in the discovery process, peer review communications may be used to cross-examine the expert, and be provided to other experts engaged by particular parties. It is even possible that a critical reviewer will end up being called as a witness by a party. In that event, the review process (which in the case of an expert engaged by native title applicants is paid for by them) would directly assist in identifying expert evidence and witnesses to challenge the claimants’ case or parts of it.

Again, there is likely to be a tension here between the perspectives of the researcher and lawyer. For the legal representative, the primary objective may be to ensure that the standing or authority of the expert engaged by his or her clients is not seen to be undermined by peer criticism. Yet a researcher used to normal peer review will commonly wonder why an open discussion of different expert interpretations should be so dangerous for those seeking his or her services. It is for the lawyers to provide clear explanation and advice about such matters.

One form of peer review which might remain protected under client privilege is a review of the expert’s report in the nature of a ‘second opinion’ sought by or through the legal representatives of those engaging the expert’s services. Such a process would not strictly be a ‘peer review’ but rather the provision of assistance to the legal representatives of the claimants in assessing the potential expert evidence.

From a lawyer’s point of view, if the expert witness is ‘quarantined’ in this way from any such ‘review’, his or her report and evidence may be saved from being compromised as a result of the discovery process.

Supervised Experts

It is often necessary for an expert report to be prepared in a context involving some supervision by a more senior professional who may have greater academic qualifications or more experience with native title matters.

Such an arrangement will necessarily generate considerable communications which may have a direct impact on the opinions of the primary researcher. Where the input of another researcher is acknowledged in a report, as it must be under the Court’s Guidelines for Expert Witnesses,[11] it is likely that any privilege that might attach to the communications between the experts will be lost upon filing of the report. In this context, a different legal principle applies from the one discussed above in relation to the Daniel case.

In a NSW native title claim where an expert report was prepared with input from a second expert, it was held that all of the communications comprising that input were required to be made available to the State even before the State’s experts’ reports were to be filed.[12] These communications included an exchange of e-mails, draft reports, comments and suggestions in relation to the drafts and responses of the primary researcher. Ultimately the e-mails were extensively quoted in the report of the State’s anthropologist in a way that had some potential to be embarrassing to the experts, the claimants and their lawyers.

The principle that applied in that case was the one found in s 126 of the Evidence Act 1995 (Cth), namely that client privilege may be lost in relation to a communication or document if it is reasonably necessary to enable a proper understanding of the expert report that had been filed. Generally the filing of an expert report that identifies, refers to or acknowledges another document will involve waiving any privilege that might otherwise be available to prevent the disclosure of the document.

The lesson from this New South Wales case is not that joint input is never a good idea, but that it must be undertaken in a context in which those involved fully understand the legal principles that will be applied to the communications generated by the process.

Collaboration Between Experts

A further matter to consider, where more than one researcher is involved, is the extent to which different experts engaged by the one party are quarantined from each other in relation to the preparation of their reports and the giving of their evidence. Alternatively, to what extent might they appropriately collaborate?

Maintaining a distance between experts has the advantage that independently produced reports that corroborate each other may carry greater weight than a report or evidence that is the result of collaboration.

Collaboration is a necessary process in some circumstances, for example where there are experts who have each researched separate sub-regions of a claim, and the claim is to be run on a regional basis. In that circumstance, it is necessary that they collaborate to some extent on identifying and defining the ‘regional basis for claim’, but it remains important that they demonstrate their independence in relation to the particular areas in which they are the primary expert.

Other questions about collaboration arise where there are a number of experts from different disciplines each preparing a report. The circumstances of each case need to be considered as they arise, but generally there will be some merit in adopting procedures whereby each expert looks to his or her own area of expertise and terms of reference, conducts the necessary research according to the accepted methodology of their discipline, and provides a report without reference to the report of any other expert.

Experts, Lawyers and Native Title Documents

In summary, native title cases involve quite complex dealings between legal practitioners and expert witnesses of various kinds. Anthropologists and lawyers have been working together on land claims and native title cases for some time now. Amidst the successful working relationships certain tensions have been arising. As the law becomes settled in relation to the sorts of documents produced in native title cases, it will be crucial to understand clearly their respective professional roles and the implications of taking particular approaches to expert research.

Robert Blowes is a Canberra barrister and David Trigger is Associate Professor in the Department of Anthropology at the University of Western Australia.

Correction- Published in ILB 4(29), April/May 2000

Experts, Documents and Lawyers

It has been drawn to our attention that the article, ‘Experts, Documents and Lawyers in Native Title Claims’, appearing in the last issue of the ILB, may have been understood as suggesting that the claimants’ lawyers and anthropologists in the case of Towney v Minister for Land and Water Conservation may have conducted themselves in a way that breached their professional duties.

It was not the authors’ intention to convey any such suggestion. If the article did give rise to such a suggestion, it was completely without foundation.

The authors of the article unreservedly apologise to the claimants, lawyers, and anthropologists involved in that case for any embarrassment which comments in the article may have caused them.’

Robert Blowes, David Trigger and the Editor


[1] Daniel and Others on behalf of the Ngaluma and Injibandi peoples v State of Western Australia [1999] FCA 1541 (Unreported, Nicholson J, 25 October 1999). Available at:<www.austlii.edu.au/au/cases/cth/federal_ct/1999/1541.html>. A case note on the judgement appears in (2000) 4 (6) Butterworths Native Title News 119.

[2] Formerly known as ‘legal professional privilege’, ‘[T]he doctrine that prevents the disclosure of confidential communications between a lawyer and client, confidential communications between a lawyer and third parties when they are made for the benefit of a client, and confidential material that records the work of a lawyer carried out for the benefit of a client unless the client has consented to the disclosure’, Commr of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, 550 (McHugh J).

[3] Now principally found in the Evidence Act 1995 (Cth).

[4] Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Callinan JJ, 21 December 1999), considered by David Ritter in his article at the end of this issue.

[5] Above n 1, para 35, emphasis added.

[6] Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247.

[7] D Trigger, M Robinson & L Gladstone, ‘Anthropology & consultancy contracts in the 1990s: who owns your brain?’ (1998) 74 Australian Anthropological Society Newsletter 5f.

[8] Available at: <www.fedcourt.gov.au/practice.htm#practiced1.htm>.

[9] Discovery is a procedure in litigation in which each party must disclose to the others a list of all documents its possession, control or power, including all documents that the party claims are protected by client privilege or any other recognised form of privilege and all documents that it has had but no longer has. ‘Discovery’ is usually followed by ‘inspection’ where each party may inspect the documents listed during discovery, except those which are privileged. Where a claim for privilege is disputed, the Court may be called upon to rule on the validity of the claim.

[10] In the Lake Amadeus Land Claim, Report No 28 (26 June 1988), Maurice J, at paragraph 209 said in relation to an anthropological report:

No lawyers have got to the report and expurgated sections of which they disapproved or required them to be re-drafted, a practice which is deceptive and to which anthropologists wrongly feel obliged to submit. Lawyers do not have the right to distort expert opinion by editing or revising reports - as happened in this claim [in relation to a second report].

See also: R M Berndt, ‘A Long View: some Personal Comments on Land Rights’, (1981) 16 AIAS Newsletter 5-20; Milurpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 161-164; I Freckelton, ‘The Anthropologist on trial’ [1985] MelbULawRw 20; (1985) 15 Melbourne University Law Review, 360; G Neate, Aboriginal Land Rights Law in the Northern Territory (1998) especially Chapter 7 (legal professional privilege is considered at 267ff and public interest immunity at 271ff).

[11] Above, n 8.

[12] David Towney v Minister for Land & Water Conservation for the State of NSW & Ors [1997] FCA 656 (Unreported, Sackville, J, 23 July 1997).

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