Indigenous Law Bulletin
by Tina Jowett
This paper will provide background to Bennell v Western Australia – the Single Noongar Claim (‘SNC’) and will discuss the following aspects of preparing the matter for hearing:
(a) expert reports;
(b) drafting a Statement of Cultural and Customary Concerns (‘SCCC’);
(c) drafting witness statements;
(d) proofing witnesses and conducting a mock hearing; and
It is usual that in native title proceedings the court orders that the applicant file a SCCC which can be very useful in alerting the parties and the court to cultural issues and sensitivities. The document should explain to the court the cultural and customary differences that an Indigenous witness may bring to the hearing process in comparison to non-Indigenous witnesses. The SCCC should not be seen as a template document. It should be crafted from the observations of the anthropologists, field workers and lawyers. A SCCC must be supported by evidence.
The SNC applicants filed a report from their anthropologist, Dr Palmer, and many of the cultural issues raised in the SCCC were included in witness statements or were led in evidence. The SCCC included aspects of custom and culture particular to the Noongar and which could be expected to affect the way in which they would give evidence. During the closing submissions, the SNC applicants referred to the SCCC to supplement the evidence as to why it was not appropriate for young people to speak about certain things in the same way as an elder and that other witnesses were reluctant to speak language in front of others.
Judicial officers and many lawyers now receive cross-cultural training, yet this is unlikely to relate to the cultural particularities of a specific applicant group. Due to the protracted nature of native title matters, most judicial officers tend to hear only one matter at first instance. This may lead to misunderstandings, a possible example of which may be found in the decision of O’Loughlin J in DeRose v South Australia  FCA 1342. His Honour was critical of the fact that younger witnesses were not called to give evidence as follows:
It was, in my opinion, very disappointing and somewhat significant not to have received evidence from more young people. One is left wondering whether the members of the younger generations have the same interest in native title entitlements as their elders.
This comment may be an example of the court misconstruing the younger generation’s respect for an elder’s right to speak for country. This is a widespread phenomenon in many Indigenous communities. If that was the case, his Honour’s understandable confusion could have been clarified by a reference contained in a SCCC.
Proofing witnesses in native title matters is time consuming and difficult because it requires the legal team to travel to far flung areas. Nevertheless, this is the single most important aspect when preparing a native title claim for hearing. Native title matters require consistent evidence from witnesses with the knowledge of traditional laws and customs and a connection to land. Without a thorough proofing process it would not be possible to obtain cogent and consistent evidence.
In relation to proofing, a legal practitioner must not suggest, or condone another person suggesting, in any way to any prospective witness, the content of any particular evidence. This does not preclude a legal practitioner from questioning and testing the version of evidence to be given by witnesses, including drawing attention to inconsistencies or other difficulties in the evidence.
Visiting country with Noongar people brought out much more information than when meeting people at their home or at the South West Aboriginal Land and Sea Council (‘SWALSC’) legal team office. It was useful to travel with people to their country with some of their family. On these occasions people exchanged stories, talked in language, collected food and bush medicines and really demonstrated their connection to their country. Despite the effects of colonisation and the inability of the Noongar people to access all of their land, their knowledge and devotion have not waned. For this reason, it was important for the Noongar witnesses and the court that the Noongar gave evidence at the sites and places important to them. After conferencing with the witnesses, certain sites were identified for the ‘on country’ hearings.
As well as the proofing process, the SWALSC team embarked on a rehearsal of the trial approximately a month before the hearing which became known as the ‘mock hearing’ which hearing was an exercise in event management to organise. During the mock trial, the witnesses were given copies of their statements and asked to read them. If their reading skills were deficient they were encouraged to sit with a literate relative who could read the statement out loud to them. The witnesses were proofed again by Counsel and a solicitor the day before the hearing.
A mock hearing was crucial to the preparation of the SNC case. It allowed the witnesses to get to know, and to hopefully trust, their lawyers and to become familiar with the court process, and in particular, that of giving their evidence. Counsel, the witnesses, other clients, the solicitors, SWALSC staff and logistics staff all benefited from the experience acquired during the mock hearing process. When deciding to choose places to take the court, the SNC applicants focused on places with spiritual association, that is, places that illustrated creation stories relating to landscapes and geographic features.
During the mock hearing some of the witnesses and the SWALSC legal team were able to visit sites that could not be included in the hearing. Due to time constraints, the SNC applicants could not take the court to some sites during the hearing because they were more than a two hour round trip from the court’s location. During the mock hearing witnesses attended the more remote sites and were photographed. The photographs were later tendered at the hearing and evidence was led about the sites in the photographs.
In the SNC, 29 Indigenous witnesses gave evidence and 26 lengthy witness statements were tendered. Tendering witness statements saved considerable hearing time and resulted in better and more complete evidence than would have been the case if we had sought to adduce all of the evidence in chief orally during ‘on country’ hearings. Evidence contained in the SNC witness statements was provided by the Indigenous witnesses over days, weeks and months in either the comfort of their homes or on their beloved country. Preparing comprehensive witness statements can prevent surprises at trial and can make Indigenous witnesses more at ease. They also allow the lawyers and anthropologists to assess the totality of the evidence and identify any gaps that need to be filled.
Although preparing the witness statements required considerable resources, it was considerably less than if the same amount of evidence was required to be given orally at hearing. Most funding for native title litigation is provided by the Commonwealth. Hence, it makes sense that if a case is prepared thoroughly by an applicant and the length of the trial is shortened, this saves Commonwealth funds.
At the SNC trial, most witness statements were amended in small ways. At the commencement of oral evidence, each witness explained the changes they wanted to the court. This indicates that each witness had thoroughly read and understood their statement.
In hindsight, evidence of spirits or spiritual connections was very compelling when given orally. Language skills were also better demonstrated in oral evidence than in a witness statement because an oral language culture is difficult to replicate in a document.
It is important to note that each native title proceeding is different and will ultimately turn on its facts. Hence, preparation that is suitable for one native title claim may not be appropriate for another. What is universal about the preparation of a native title claim is the time and effort necessary to fully present a claim. This article highlighted some important aspects of the preparation of the SNC and it is hoped that it will be useful to practitioners in the future when they prepare claims.
Tina Jowett was Junior Counsel for the successful Noongar applicants and appeared for them at the hearing of the State of WA and other respondents’ appeals before the Full Federal Court in April 2007.
 153 FCR 120.
 Federal Court Rules, Part 78, rule 4.
  FCA 1342, 15.
 Western Australia Bar Association Inc, Conduct Rules 43.
 Western Australia Bar Association Inc, Conduct Rules 44.
 An example of the time taken by many witnesses giving evidence is Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9)  FCA 31 where evidence was given over 100 days and was contained in 17,000 pages of transcript.