History and Native Title

By Christine Choo And Shawn Hollbach, Nedlands: UWA Press, 2003, 276 pages, paperback, . Reviewed by Elizabeth Coleman in the March 2004 issue.

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Published ten years after the introduction of the Native Title Act, the sixteen essays published in this issue of Studies in Western Australian History present a 'snap-shot' of the outcomes of a legal solution to the moral problems created by colonialism. The essays, written by Aboriginal people and historians involved in the native title process, discuss the possibilities opened up by the Act, and the bitter disappointments and achievements that flowed from it. As such, History and Native Title is an important historical document in its own right.

The editors, Christine Choo and Shawn Hollbach, have organised the essays into three sections -- an introduction and overview of the key developments in the law, a section presenting the perspectives of Aboriginal people, and a discussion of historiography and the challenges faced by historians in the development of evidence for use in native title claims. From this material, several themes emerge. One is that native title, for many Indigenous and non-Indigenous people, is more than a matter of the recognition of land rights: it involves recognition of their living culture. Another is that the system through which land claims are made and evidence is sought is stacked against Aboriginal claimants. As Tony Lee states, 'The original hopes for the native title process may have felt like it was about Aboriginal people -- who we were and where we live and what our culture is about; that it would give us a chance to prove what we all knew, that we owned the land and always have. But now we have to be clear that native title law, on its own, is not a chance to recognise, listen to, or understand culture or laws and practice; it is about white land laws' (p. 35).

In 1992, the new Native Title Act held forth the promise of social justice, but it has not lived up to the hopes people had for it. Following the Mabo decision, in which the legal doctrine of terra nullius was found to be 'a travesty of fact and a fallacy of law', many Aboriginal people believed that that the law would recognise their rights, and redress the social disadvantages facing Aboriginal people. 'For the first time in history', Lee writes, 'Aboriginal and Torres Strait Islander peoples dared to hope that legislation would force major changes throughout Australia' (p. 30). Significant disappointment followed the 1998 amendments to the Act. Lee suggests, 'Native title has become a struggle to be heard and then a struggle not to let it make things worse' (p.32). This theme of the battle is also used by Brian Wyatt, who suggests that people 'not only have to battle within the right to negotiate processes with industry, they have to battle with a bureaucracy that does not favour them in any way or treat them as equal citizens'(p. 49). Both authors conclude that the native title process is racist (p. 35; 53). Whether or not the reader accepts that claim, the essays present clear reasons for Aboriginal people's disappointment with the system, and support their suggestion that the system works against them.

What the Native Title Act does not do is automatically grant land rights to all Aboriginal people on the basis of prior occupancy and custodianship. Harriet Ketley and Claire Ozich suggest that there is no judicial assumption, or notice, of Aboriginal presence at or post sovereignty. Instead, 'the common law burden of proof means that Aboriginal claimants have the burden of disproving terra nullius' (p. 84). Claimants are asked to prove that they are the rightful title-holders (as opposed to some other group). Moreover, as Ketley and Ozich observe, the Act does not redress the wrongs of history. While this is an obvious source of disappointment, it does not necessarily mean that the Act fails to achieve a kind of justice. The Act provides the process by which Australian courts determine who has 'what' title in what land -- that is, who presently has title in land. It should be understood as a distributive, rather than corrective, form of justice. (Distributive justice allocates 'goods', in this case rights, between potential holders of the goods along a 'geometric' model. Corrective justice concerns whether and how things should be allocated back to, or simply to, people along an 'arithmetic' model of addition and subtraction.) The logic of the law is such that, as courts cannot question their own legitimacy, they must recognise other titles granted because they must recognise their own legal decisions. Because of this, the law is inevitably culturally biased.

It may well be called a form of justice -- but it is rough justice. In determining the distribution of what is 'left over', Aboriginal groups making claims under Native Title are also asked to prove that the customary law under which their title is recognised still exists. Even if claimants successfully establish that they are the descendants of the owners at the point of colonisation, they may not successfully prove the continuing existence of the laws and customs that connect them with the land. As distributive rather than corrective justice, there is no compensation for lost rights. In addition, Ketley and Ozich point out that the failure to prove a continuing connection with land is directly connected to the courts' preference for documentary over oral historical evidence (p.86). Several of the essays speak of the prejudice underpinning the notions that Aboriginal people have 'lost' their culture and that if current customs do not conform to preconceived notions of Aboriginal spirituality and a tribal lifestyle, they are not genuine or authentic expressions of the law. More benignly, oral history may be considered unreliable evidence because of the unreliability of memory, or merely for its inevitable interpretation through contemporary interests. Yet, as a matter of judicial discretion, the failure to recognise the authority of oral history may be considered a further significant cultural bias that works against Indigenous peoples.

Most of the essays in the third part of the book explore the issue of oral history as evidence. 'Facts', including written records, do not speak for themselves. As Fiona Skyring argues, historical evidence can only ever be a matter of interpretation. The preference for documentary evidence must also be tempered by recognition of its limitations. Essays by Lauren Marsh and Steve Kinnane, and Christine Choo and Chris Owen show that these limitations may include biases produced from missing files and archives, and one-sided descriptions which occur because only one party, such as the police, recorded events, and recorded them in such a way as to exonerate its own motives and actions. In these situations, oral history may be the only alternative source of information. Bruce Shaw presents an even-handed approach to recognising the potential weaknesses of 'thick' oral history in the context of a legal situation, and suggests methodological approaches that make it more acceptable for use as evidence in the courts.

Reading Shaw's essay from the perspective of a background in legal theory, I was struck by three paradigms that Shaw describes as expressing the Janus face of the concepts and practices central to present-day Nyungar culture. These paradigms are, respectively, the memories, current relationship and spiritual associations people have with land; a general set of propositions about what custodianship and inheritance of land involves; and a similar list of propositions outlining culture as revealed by the testimony of individual elders (pp 102-4). The importance of these paradigms is that they might be used more generally in the identification of current Aboriginal law, and that they show why it is imperative that oral history and testimony is respected in courts.

In The Concept of Law, H.L.A. Hart defined rules (laws) as having an external and internal aspect. The external aspect involves what can be observed from an outsider's point of view, for example, that drivers consistently stop at red traffic lights. The internal aspect concerns the motivation people have for obeying law ---- that is, how it acts as a sign or reason for behaving one way or another. These external and internal aspects of law appear to correspond to Shaw's paradigms of a set of propositions about the custodianship of land and the relationship people have to it (although his concept of oral history is far thicker than this). Shaw has the least to say about the third paradigm he identifies. However, this paradigm underscores an important, and seemly overlooked, point: there are two distinct kinds of facts to be established here. One kind of fact concerns what the law is; the second kind of fact is the determination of who has what rights. This second kind involves a speech act.

Hart argues that a judgment of law, for example, whether a person has certain rights, involves more than knowledge of the rules. A judge, like an umpire in a game, interprets the rules, and makes an authoritative determination about the status of something. If an umpire calls 'out', that player is out, regardless of whether a television replay shows that the umpire may not have based their decision on perfect knowledge; similarly a judge. A judge does not make up the rules, but makes a determination in accordance with them, and this determination is an institutional or social fact. Authoritative interpretations and determinations of rights in law are made by those people 'with authority' -- in the Australian legal system by judges, and in the Aboriginal legal system by those who are elders and have the right to decide.

The expert witnesses in a native title case cannot be said to be historians and anthropologists. These professionals can corroborate Indigenous claims about what the law is through observing patterns of behaviour that correspond to the external aspects of law, through recording the associations of people, its internal, motivational force, and through recording the judgments that elders have made. The real expert witnesses are Aboriginal people with the authority to make judgments about rights. If the Australian legal system is honestly to recognise Aboriginal law, without subsuming and 'colonising' it within its decisions about who has what rights, it must also recognise the judgments of those Aboriginal people with the authority to determine the distribution of rights. If acting consistently, the legal system can no more find this evidence 'unreliable' than judges can find their own judgments irrelevant. In the determination of law, who speaks counts.

Citation

• Elizabeth Coleman. 'Review: History and Native Title by Christine Choo and Shawn Hollbach' [online]. Network Review of Books (Perth, Australian Public Intellectual Network), March 2004. Availability: <please cite the web address here> ISSN 1833-0932. [accessed 19 June 2013].

Back Cover Blurb

• History and Native Title represents a collaboration between Aboriginal and non-Aboriginal people working in the milieu of native title law, history and politics in Western Australia. It gathers together a range of significant scholarship that is uniquely Western Australian yet relevant to the historiography of native title and dispossession throughout Australia. It explores theoretical and methodological considerations in relation to the practice of native title history and explores important issues about the nature and background of the archival records and other documentary sources which form the mainstay of historical research used in the native title claim process.
  
  Featuring articles by Shawn Hollbach and Christine Choo, Tony Lee, Wayne Bergmann, Brian Wyatt, Darryl Pearce, Fred Taylor, Fiona Skyring, Harriet Ketley and Claire Ozich, Bruce Shaw, Lauren Marsh and Steve Kinnane, Chris Owen, Peggy Brock, Pamela Stratham, David Ritter and Kate Morton.

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