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by Christine Choo & Shawn Hollbach
‘Mainstream legal discourse revolves around the notion that objective truth can be discovered through a rigorous analysis of the facts...European historiography and the rules of evidence around which it revolves are grounded in a tradition of positivism and Enlightenment rationalism.’
Native title claimants are being faced more and more with a need to resort to the Federal Court system in an attempt to secure acknowledgment of their rights and interests in land. Historians are among a number of so-called ‘expert’ witnesses who have played an important role in the preparation and conduct of litigation, by assembling and commenting upon evidence used to corroborate or undermine the testimony of Aboriginal claimants. This highly political process places enormous demands on both claimants and researcher.
In providing an opinion on the range and strength of historical evidence for native title claims, historians need to consider carefully a range of methodological, ethical and epistemological issues which relate to the extent of their ‘expertise’ and to their role and obligations as researchers. In this paper we reflect on our experience as native title historians to explore some of the issues inherent in the use of historical research in native title litigation.
Historians can play a number of roles in the native title process, depending on the research needs of particular claims, the manner in which a given claim is organised and conducted and the arguments the respondents plan to mount in court. There is currently some ongoing discussion about the role of historians and the importance of historical evidence in the litigation process. [i] Historians may be called upon to gather together ‘facts’ from available secondary and archival sources, organise material for presentation in court, and provide expert opinion in relation to issues such as continuity of indigenous occupation, traditional culture and land use and the impact of European occupation. In relation to continuity of occupation, the historian may be required to map individuals and indigenous groups to places within the boundaries of the claim and to trace movements in and around the claim area across given time periods.
The paucity of existing research on Aboriginal-European relations means that the research process often involves an intensive search and analysis of primary archival material. This might include Aboriginal Affairs, Community Welfare and Police department files, as well as European exploration journals, pastoral station records, diaries, personal correspondence and parliamentary papers. Depending on which organisation the historian is working for, he or she may also be called upon to collect oral evidence. The process of assembling material from archival records is often painstaking. In the absence of corroborating secondary historical material, whoever carries out this research then becomes the ‘expert’.
Native title research raises complicated questions about the nature of historical evidence and the role of historians as so-called ‘expert’ witnesses. The evidence assembled by historians and the opinions they formulate are part of an intensely political process in which opposing perspectives (principally, but not exclusively, those of the applicants and the State Governments and other respondents) are pitted against each other in court. Often the same historical material is subjected to a number of divergent and incompatible interpretations, grounded in the opposing political interests of the various respondent groups. This raises questions about the obligations of historians to claimants and the court, questions which are particularly vexed in light of contemporary historiographical debate about the politics of evidence and the capacity of historical documents to provide a ‘balanced’ or ‘objective’ account of the past.
Historians who work in this area face a major problem in reconciling the contradiction between these kind of historiographical perspectives and the imperatives of a judicial discourse where rhetorical and narratological dimensions of historical practice are not generally acknowledged. Mainstream legal discourse revolves around the notion that objective truth can be discovered through a rigorous analysis of the facts. This rhetoric of objectivity obscures senses in which both the analytical process and the facts it interrogates reflect power relations associated with gender, culture, class etc. As recent cases illustrate, the native title era is forcing courts of law to confront these issues. But most historians of Aboriginal-European relations continue to be acutely aware of the problems associated with applying European rules of evidence and concepts of historical truth to the analysis of indigenous culture and experience.
Representations of the past are culturally specific. European historiography and the rules of evidence around which it revolves are grounded in a tradition of positivism and Enlightenment rationalism. Within this tradition, a strict dichotomy between ‘past’ and ‘present’ prevails and time is construed as a linear progression of events and social processes. Moreover, Western history (at least in its more respectable ‘academic’ forms) is based on a tradition of written discourse. All of this presents problems for a historian who is attempting to convey a sense of indigenous culture and experience, where no written tradition has existed until recently, where story-telling is often circular and ritualistic, and where access to knowledge is regulated and restricted by the Law.
The tendency of Western historians and the legal system to value written traces of the past more than other traces (for example, individual memory, dance, visual art etc) often obscures Aboriginal voices and renders Aboriginal people historically invisible. Written archival sources generally embody a European perspective, and the historian who approaches them uncritically is likely to reproduce the political and cultural biases they embody. A historian who is not interested in challenging mainstream historical interpretations (favouring white, male, middle-class, State Government perspectives), will find using these kind of written sources unproblematic. However, if the historian is interested in accounting for the absence of Aboriginal voices in archival material, and in illuminating issues of social and cultural oppression, then this kind of historian is likely to need to question and problematise orthodox notions of evidence and methodology. Any presentation of the historical facts concerning Aboriginal-European relations is enhanced by a recognition of the political and cultural contingency of those facts.
In native title research, it is important to consider differing Aboriginal notions of ownership and transmission of knowledge which are central to defining Aboriginal identity and country. In attempting to extract indigenous knowledge for the purposes of research on native title, historians run the risk of perpetuating the colonising practices associated with Western culture. Secrecy is an important part of Aboriginal cultural life, but it has also functioned as a defence mechanism against social and cultural colonisation. Historians must acknowledge that ownership of knowledge resides with claimants and respect restrictions imposed on the use of such knowledge.
One of the most offensive ironies of the litigation process is that the onus is on the original occupants of the land and not the colonisers to demonstrate entitlement to their land. The process imposes an enormous pressure on native title applicants, who also have to deal with the requirements of an alien legal process.
Perhaps one of the most positive outcomes of the native title process, apart from the acknowledgment of Aboriginal land entitlement itself, has been the greater publicity given to historical issues which have affected the lives of Aboriginal people. The native title process has been a catalyst for research into all aspects of Aboriginal History. Native title research will document issues such as Aboriginal involvement in the pastoral industry, coexistence as a fact of life on the frontier, as well as the atrocities committed against the original inhabitants of this country. It is hoped that some sense of the injustices which characterise Australian history will eventually seep into the mainstream historical imagination.
These are some of the salient issues for historians engaged in native title research. The dialogue between historians and lawyers, and between historians, anthropologists and other professionals engaged in native title research must continue as we explore professional boundaries within the context of native title litigation.
Dr Christine Choo is Senior Historian at the Aboriginal Legal Service of Western Australia and a Consultant Historian. Shawn Hollbach is a Historian at the Aboriginal Legal Service of Western Australia.
This paper is a summary of discussion points raised at the Forum on Historians and Native Title at the Biennial Conference of the Oral History Conference, ‘Crossing Borders’, held in Alice Springs in September 1997.
[i]Ann Curthoys, The proof of continuity of native title: An historian’s perspective, and Julie Finlayson, The proof of continuity of native title: An anthropological perspective, in Land, Rights, Laws: Issues of Native Title, Paper No. 18, 1997; James F. Weiner, Anthropologists, historians and the secret of social knowledge, Anthropology Today, Vol. 11, No. 5, October 1995; Geoff Sherrott, The Court’s treatment of the evidence in Delgamuukw v. B.C., Saskatchewan Law Review, Vol. 56, 1992, pp 441 - 50.
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/1999/2.html