Legal Language across Cultures: Finding the Traditional Aboriginal Owners of Land
| Author | Graeme J. Neate |
| Published date | 01 September 1981 |
| Date | 01 September 1981 |
| DOI | http://doi.org/10.1177/0067205X8101200301 |
| Subject Matter | Article |
. LEGAL LANGUAGE
ACROSS
CULTURE.S:
~lNG
THE TRADITIONAL ABORIGINAL
OWNERS
OF
LAND
BY
GRAEME J.
NEATE*
The Aboriginal Land Rights (Northern Territory)
Act
1976 (Cth)
was
the
first
recognition at
law
of
the traditional ownership
of
land in
Australia by Aborigines. It provides means whereby Aborigines
claiming to have a traditional land claim to certain types
of
land in
the Northern Territory can demonstrate that ownership to the
Aboriginal Land Commissioner.
If
he finds that there are traditional·
Aboriginal owners
of
the land he reports that finding to the Common-
wealth Minister for Aboriginal Affairs and may recommend a grant
of
it to a Land Trust. Sometimes problems in ascertaining which,
if
any, Aboriginals are the traditional Aboriginal owners
of
the land
claimed arise from the difficulty inherent in expressing the land tenure
system
of
one culture in the language
of
another. The author illustrates
this with examples from one land claim hearing and argues that . the
use
of
interpreters
is
desirable to enable the claimants · to put their
case clearly and for the Commissioner to understand more fully the
intricacies
of
Aboriginal land tenure systems.
Under section 50( 1) of the Aboriginal Land Rights (Northern Territory)
Act 1976 (Cth) (the Land Rights Act) the functions of the Aboriginal
Land Commissioner include ascertaining whether Aboriginals claiming to
have a traditional land claim to an area of land, or any other'Aboriginals,
are the traditional Aboriginal owners of· the land. claimed. The ·term
"traditional Aboriginal owners"
is
defined in section 3
(1)
of the Act.1
To
determine
who
are the owners of ,the land so claimed the Commis-
sioner takes evidence, inter alia,· from the claimants (or those of them who
can. speak for larger groups) and anthropologists, and hears submissions
from counsel. Evidence
is
taken from Aboriginal witnesses either in English
or, via an interpreter, in their own language.
In this Article some of the problems encountered in obtaining accurate
and complete information concerning traditional Aboriginal ownership of
land (both
as
defined in the Land Rights Act and in terms of Aboriginal
concepts) will be discussed, attention being focused on the role of Jhe
interpreter in such proceedings and on the need to understand Aboriginal
concepts about land which might not be readily apparent when Aboriginal
witnesses give evidence in English. In doing
so
the discussion will initially
touch on the related problems of taking any sort of evidence from
Aborigines in legal proceedings.
I. A boriginai Languages and the Law
In a courtroom or analogous situation the linguistic problems fall broadly
into two categories. First, the translation of juristic concepts into Aboriginal
languages or "Aboriginal English" and, secondly, the translation of
Aboriginal concepts into English. The former category
is
most commonly
*B.A. (A.N.U.), LL.B. (Hons),(A.N.U.).
1 See
infra
p. 194, where the definition is set out.
187
188 Federal Law Review
(VOLUME
12
associated with the pre-trial and trial questioning of accused persons in
court proceedings; the latter
is
clearly apparent when evidence
is
taken
before the Aboriginal Land Commissioner.
In an Article discussing the question whether and how far Aboriginal
languages can, through the service of interpreters, be used to express juristic
ideas and principles involved
in
the operation of courts of law, Wurm
outlined the link between language and culture. He noted that the symbols
of language have definite references to individual items, units and elements
in the culture of the speech community. These "referential values" are
agreed upon as a matter of tradition. Wurm argued that
"a
language,
as
a
system of symbols, can only exist if there
is
a culture complex with which
it
is
connected through conventionally established and, within the speech
community sharing that language, generally accepted referential ties" .2
A language will only be intelligible to a person if he
is
familiar, either
directly or indirectly, with the culture to which the language symbols refer.
The greater the differences between that person's culture and the culture
on which the language is based, the greater the danger of that person
misunderstanding the language and the culture to which it belongs. This
may result in him wrongly referring some symbols in that language to
elements in his own culture, when those elements either do not form part
of the other culture at all and are merely projections of elements of his
own culture into the other, or they are not the particular elements of the
other culture to which the language symbols do in fact refer.
There appear to be three classes of concepts into which elements for
translation can fall:
1.
Elements which exist in the same form
in
both cultures and which
have words which convey these elements in both languages.
2.
Elements which exist in similar form in both cultures and which have
words which more or less convey the same meaning in both languages but
need further explanation to ensure correct translation; for example,
"mother" will usually be used
in
English to mean the biological mother of
a child but in some Aboriginal languages refers to any woman from a class
of women such
as
a person's biological mother's sisters.
3. Elements which exist in one culture but have no cultural, and hence
no linguistic, equivalent in another; for example, "computer".
There are many basic vocabulary words which may not have the direct
equivalents necessary to place them
in
the first of these classes. Depending
on which language
is
being spoken, the word "tree" may be used to mean
"wood", "stick" or even "spear". Similarly, "sand" may mean "earth",
"soil" or "sugar"; and "eye", which in English
is
extended from the body
to "eye of a needle" and "eye of a cyclone", may be extended in some
Aboriginal languages to include "waterhole" and "girlfriend/boyfriend".
Words in class 1 are quite rare, although the context in which words are
used makes them more readily translatable.3
2 Wurm, "Aboriginal Languages and the Law" (1963) 6 University
of
Western
Australia Law Review
1,
2.
3D.
Zorc, Personal correspondence.
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