Appointed as a Judge of the Federal Court shortly after the Native Title Act came into force, Justice John Mansfield AM QC has shaped its jurisprudence with clear and sometimes bold expression of ideas. Here, he reflects upon his work with Native Title, sharing insights about communication, and the acute need to understand where a speaker is ‘coming from’—literally, culturally and intellectually.
In 1998, the Native Title Act 1993 was amended to give to the Federal Court of Australia direct responsibility for the hearing and determination of claims for the recognition of native title rights and interests. That responsibility carried with it great communication challenges. The Native Title Act was introduced in response to the High Court decision in Mabo. That decision forcefully rejected the proposition that, at the time of European settlement, Australia was a barren and unoccupied land—‘terra nullius’—as had been the legal understanding to that time.
Mabo forcefully rejected the idea that Australia was a barren and unoccupied land at the time of European settlement.
To the contrary, the High Court found that, at settlement, Australia had been occupied by Indigenous Australians for a long time, and who had each operated in accordance with a system of laws and customs over their respective country.
The 1993 Native Title Act provided the principles on which the Australian community would recognise those Indigenous rights and interests (consistent with the preservation of the interests in land granted by the Australian States and Territories from time to time). It also provided the structure by which such Indigenous rights would be recognised, and that structure was the subject of the 1998 changes.
In 1998, there were about 800 claims made by various Indigenous groups for recognition of their native title. They had not progressed much over the preceding five years, for a combination of reasons. In fact, it was during the first decade of the 21st century that the High Court, in a series of decisions, explained how the principles in the Act were to be construed and applied.
Over the next two decades from 1998, the Federal Court determined a very significant number of the 800 or so claims existing at that time, as well as subsequent claims. It is the process of dealing with those claims which provide the insights offered within this article.
The claimants in any claim must show that, at the time of European settlement, their forebears occupied the claimed land in accordance with a system of traditional laws and customs, and they must also show, as the current claimants, that they now occupy the claimed land still in accordance with the same traditional laws and customs, appropriately adapted to evolving circumstances.
Proof of the current connection between the past and the present is largely a matter of evidence from the claimants themselves.
The evidence to support such claims is necessarily, in part, expert evidence: archaeological, linguistic, historical, and most importantly anthropological. But the proof of contemporary beliefs and practices, and the way they were learned—that is, the proof of current connection between the past and the present—is largely a matter of evidence from the claimants themselves.
This is the area in which the Federal Court—judges, registrars and other staff—came to learn the need for effective communication with the claimants, so as to properly understand their evidence and to give it the weight which it merits.
The Court had the benefit of the experience of the Aboriginal Land Commissioner (ALC under the Aboriginal Lands Rights (Northern Territory) Act 1976(ALRA)). Under the ALRA, land in the Northern Territory which had not been the subject of any grant of an interest post-settlement—and so was unalienated Crown land—could be granted to the traditional Aboriginal owners if certain conditions were met.
The identification of the traditional owners was the responsibility of the ALC. The first ALC was John Toohey who was instrumental in developing the processes for hearing Aboriginal evidence, and adopted by the Federal Court from 1998.
There are several important lessons which the Court learned. They may seem fundamental or obvious, but they were each the consequence of experience. They may also provide a reminder of the purpose of our respective communications and the benefits of ensuring they are effective.
Understand the person with whom you are communicating.
First, it is necessary to understand the person with whom you are communicating. Some people are forceful and outgoing. Others are passive and reticent. Some may enjoy confrontation, and some may dislike it. Yet what each has to say may be very worthwhile.
Very early on, the Court had a vibrant illustration of this. In the evidence of a quiet Torres Strait Islander, the evidence became difficult because he agreed with every proposition (Question: Do you know about this area? Answer: Yes. Question: Answer: Yes). His quiet respectful upbringing and culture prevented him from disagreeing with any question, which meant that the evidence he gave had to be very carefully elicited and tested.
Second, it is necessary to understand the perspective of the person providing the information. It is often very difficult to put yourself in the shoes of a particular witness, and so it is possible to be unfair in the assessment of what that person says.
Understand the perspective of the person providing the information.
It is not appropriate to assume that all who give evidence are entitled to answer all the questions they are asked, and sometimes it is awkward for the person being questioned to explain that the answers given are not simply evasive in a way that might affect their credibility. There have been many examples where a witness has appeared to be evasive—that person may have known the answer, but may not have been culturally authorised to give the answer, either because of gender, or age, or the relative seniority of the person in the group. Being alert to such possibilities enables that person to explain the answers in a way that does not involve the perception of evasiveness.
Third, and most important, it is the common experience that many Indigenous Australians do not feel comfortable giving evidence in a court environment, or even a less formal but interior environment. And there have been many illustrations of that.
A seemingly diffident or taciturn person in an inside environment becomes effusive and informative in an outside environment. Hence, the coined expression of giving evidence ‘on country’. It is as if the open space is liberating and a more natural location for the story to be told. The quality of the evidence become much greater and more persuasive.
The connection to country is not simply a matter of words, but of feeling; of being able to show particular things; of vibrancy; of ownership.
Fourth, and allied to the third matter, is the desirability of that evidence being given ‘on country’, as it applies to the particular witness.
Many Indigenous Australians do not feel comfortable giving evidence in a court environment. Giving evidence ‘on country’ offers a more open, liberating and more natural location for the story to be told.
I have seen many examples of that. A bland and flat presentation becomes a lively and persuasive one when the witness can point to the relevant physical features, when certain events can be shown to have occurred, where certain learning experiences have taken place, and where certain objects can be displayed and their significance explained by reference to the local geography. Where the connection to the country is not simply a matter of words, but of feeling. Of being able to show particular things. Of vibrancy. Of ownership.
It is also commonly the case that ‘on country’ evidence shows further, more specific detail of events or experiences which were not otherwise likely to have been elicited. We all have the experience of remembering, unprompted, a personal event, experience or learning, just in the course of a conversation, which, if we were asked to recall without the prompting of the occasion, we may not have remembered at all. Giving evidence ‘on country’ has that benefit too.
I recall a senior Aboriginal man giving evidence ‘on country’ about his ancestors and what he had been told of an experience of one of them. There was a number of his claim group members listening, men in seats, women sitting separately on the ground. He attributed something to one named deceased person with an instant uproar from the watchers, men and women, that he had the wrong name. He chuckled, and said, “I must have that wrong”, and adopted the collective answer. Is there any doubt that his evidence, as amended, was correct?
These comments serve the point: communication should be real, and not an illusion. We should all listen to the speaker, understanding where the speaker is ‘coming from’ literally, culturally and intellectually.