The Definition and Discovery of Facts in Native Title: The Historian's Contribution

AuthorAnne Carter
Published date01 September 2008
Date01 September 2008
Subject MatterArticle
Anne Carter*
The relationship between law and history has long been the subject of academic
interest. Both disciplines have occasion to turn to the past, yet their purposes and
methods for doing so often vary. Some commentators have noted the similarities
between the two disciplines, describing them as 'intellectual cousins'1 who share a
'natural affinity'.2 Yet, equally, commentators have noted the tensions between the two
disciplines, depicting them not as allies but as strangers or enemies.3 These scholars
have painted a picture of competing logics, suggesting that the clash between the law's
'logic of authority' and the historian's 'logic of evidence' creates an uneasy
Although capturing the attention of both judges and commentators, the intersection
between law and history continues to elude precise definition. In Wik Peoples v
Queensland Gummow J observed that
[t]here remains lacking, at least in Australia, any established taxonomy to regulate such
uses of history in the formulation of legal norms. Rather, lawyers have 'been bemused by
the apparent continuity of their heritage into a way of thinking which inhibits historical
understanding'. Even if any such taxonomy were to be devised, it might then be said of it
* BA (Hons), LLB (Hons), University of Adelaide. I am particularly grateful to Andrew
Ligertwood for his enthusiasm and support throughout the various stages of the
preparation of this article. I would also like to thank Dr Steven Churches, Dr Gary
Edmond, Dr Christopher Jones, Meaghan McEvoy, Alexander Reilly, Andrew Tokley and
Jonathan Wells QC for their assistance and comments at various stages. I am also grateful
to the anonymous referees for their helpful suggestions.
1 See, eg, Graeme Davison, 'History on the Witness Stand: Interrogating the Past' in Iain
McCalman and Ann McGrath (eds), Proof and Truth: The Humanist as Expert (2003) 53, 53.
2 Jonathan D Martin, 'Historians at the Gate: Accommodating Expert Historical Testimony in
Federal Courts' (2003) 78 New York University Law Review 1518, 1523.
3 Helen Hornbeck Tanner, 'History vs. The Law: Processing Indians in the American Legal
System' (1999) 76 University of Detroit Mercy Law Review 693, 694, 698; Martin, above n 2,
1523–5; James C Mohr, 'Historically Based Legal Briefs: Observations of a Participant in the
Webster Process' (1990) 12(3) Public Historian 19, 19–22.
4 F W Maitland, 'Why the History of English Law is Not Written' in H A L Fisher (ed), The
Collected Papers of Frederic William Maitland (1911) vol 1, 480, 491. See also John Phillip Reid,
'Law and History' (1993) 27 Loyola of Los Angeles Law Review 193, 195–6; Enid Campbell,
'Lawyers' Uses of History' (1968) 6(1) University of Queensland Law Journal 1.
300 Federal Law Review Volume 36
that it was but a rhetorical device devised to render past reality into a form useful to
legally principled resolution of present conflicts.5
Since this time there have been a number of attempts to classify the various ways in
which history might be used as part of judicial reasoning. For instance, the late Justice
Selway, writing extra-curially, divided the courts' uses of history into several
categories, including the use of history in finding facts in issue and constitutional facts,
in interpreting statutes, and in developing the common law.6
This article is concerned specifically with the task of proving the material facts in
native title claims. In such claims the material facts stipulated by the relevant legal rule
stretch back into the distant past, meaning that the historical dimension of fact-finding
becomes more acute. The article contributes to the existing debate by asking how
historians might assist courts in their approximation of the past, either in terms of the
inferential proof of the material facts or in the formulation of the type of past to be
approximated.7 In doing so, it considers how understandings of history may influence
what can reasonably be required in evidentiary terms to find native title proved on the
balance of probabilities. Such an inquiry is apposite given the much-acknowledged
difficulties with the current native title regime.8
The Native Title Act 1993 (Cth) ('the NTA') requires that a segment of the past be re-
created that is broader and more complex than in conventional civil or criminal cases,
as the claimants must prove a connection with the land under traditional laws and
customs spanning a much longer period of time. Both lawyers and historians would be
quick to agree that the 'actual past is gone' and cannot be observed directly.9 In this
sense, all facts that courts are required to prove are historical facts. The trier of fact has
no first-hand experience of the events in question, and so these events must be
reconstructed through a process of inference from the surviving material traces.
Through this process of inference the courts create an approximation of the past.10 In
the context of native title this reconstruction presents the courts with considerable
difficulties, as there will be fewer surviving material traces and no witnesses with
memories of the events in question.11 Further, there will be difficulties arising from the
disjunction between traditional indigenous society and the demands of the Western
5 (1996) 187 CLR 1 ('Wik'), 182–3 (Gummow J).
6 Bradley Selway, 'The Use of History and Other Facts in the Reasoning of the High Court of
Australia' (2001) 20 University of Tasmania Law Review 129.
7 Courts can only ever seek an 'approximation' of the past, and can never reconstruct the past
in its entirety. See discussion corresponding to footnote 11, below.
8 See, eg, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title
Report 2007 (2008).
9 Carl L Becker, 'What are historical facts?' in P L Snyder (ed), Detachment and the Writing of
History: Essays and Letters of Carl L Becker (1958) 41, 52.
10 Andrew Ligertwood, Australian Evidence (4th ed, 2004) 5. Evidence scholars sometimes
express this approximation in terms of mathematical probabilities: see, eg, David Hamer,
'The Civil Standard of Proof Uncertainty: Probability, Belief and Justice' (1994) 16 Sydney
Law Review 506; D H Hodgson, 'The Scales of Justice: Probability and Proof in Legal Fact-
finding' (1995) 69 Australian Law Journal 731.
11 In the context of ascertaining the Aboriginal death toll during colonisation see Lawrence
McNamara, 'History, Memory and Judgment: Holocaust Denial, The History Wars and
Law's Problems with the Past' (2004) 26 Sydney Law Review 353, 392.
2008 Definition and Discovery of Facts in Native Title 301
legal system, which means that much of the material required to prove a connection to
the land will not be reduced to written form.12
The historical inquiry required for the proof of native title has sparked renewed
vigour in the debate between law and history. Following the High Court's Mabo and
Wik decisions it was expected that both history and historians would have an
important role in the resolution of native title claims.13 Mabo's rewriting of the law
(through the rejection of the doctrine of terra nullius) was accompanied by a rewriting
of Australia's history, meaning that the work of historians such as Henry Reynolds
assumed national prominence.14 Rather than endorsing a history of a settled colony, as
had earlier decisions such as Cooper v Stuart,15 the majority judgments in Mabo
acknowledged that, for indigenous people, history had often meant dispossession and
Given this prelude, it is perhaps surprising that historians have so far played only a
small part in the litigation of native claims under the NTA and have been notably
overshadowed by anthropologists.17 Perhaps because of their involvement with land
claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth),18 it is
anthropologists who have been the dominant experts in native title determinations.19
Sparked in part by this discrepancy, there is an emerging debate about history and
native title.20 Much of this literature draws upon the experiences of historians and
12 Michael Kirby, 'Alex Castles, Australian Legal History and the Courts' (2005) 9 Australian
Journal of Legal History 1, 12–13; Ward v Western Australia (1998) 159 ALR 483, 504 (Lee J).
13 Mabo v Queensland (No 2) (1992) 175 CLR 1 ('Mabo'); Wik (1996) 187 CLR 1. See Tom Gara,
'History, Anthropology and Native Title' in Mandy Paul and Geoffrey Gray (eds), Through
a Smoky Mirror: History and Native Title (2002) 65, 66.
14 R S French, 'Mabo – Native Title in Australia' (Paper presented at the Landmark Cases
Roundtable Conference, Constitutional Court of South Africa, Johannesburg, 10–11
December 2004) [2]–[30]; Bain Attwood, 'The Law of the Land or the Law of the Land?:
History, Law and Narrative in a Settler Society' (2004) 2 History Compass 1; Gara, above n
13, 69–70; Penelope Matthew, Rosemary Hunter and Hilary Charlesworth, 'Law and
History in Black and White' in Rosemary Hunter, Richard Ingleby and Richard Johnstone
(eds), Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law (1995) 3,
3–27; Bain Attwood, 'Introduction – The Past as Future: Aborigines, Australia and the
(dis)course of History' in Bain Attwood (ed), In the Age of Mabo: History, Aborigines and
Australia, (1996) vii, xxxi–xxxiii; Selway, above n 6, 151; John Williams, 'Constitutional
Intention: The Limits of Originalism' in Ngaire Naffine, Rosemary Owens and John
Williams (eds), Intention in Law and Philosophy (2001) 321, 334–5.
15 (1889) 14 App Cas 286, 291 (Lord Watson) (Privy Council).
16 Mabo (1992) 175 CLR 1, 58, 69 (Brennan J); 104–9 (Deane and Gaudron JJ).
17 David Ritter and Frances N A Flanagan, 'Stunted Growth: the Historiography of Native
Title Litigation in the Decade Since Mabo' (2003) 10 Public History Review 21, 21–3.
18 Gara, above n 13, 67.
19 David Ritter, 'Whither the Historians? The Case for Historians in the Native Title Process'
(1999) 4(17) Indigenous Law Bulletin 4, 4; Alexander Reilly, 'The Ghost of Truganini: Use of
Historical Evidence as Proof of Native Title' (2000) 28 Federal Law Review 453, 470.
20 There are some recent collections: Mandy Paul and Geoffrey Gray (eds), Through a Smoky
Mirror: History and Native Title (2002); Christine Choo and Shawn Hollbach (eds), History
and Native Title: Studies in Western Australian History (2003) vol 23; Iain McCalman and Ann
McGrath (eds), Proof and Truth: The Humanist as Expert (2003); Sandy Toussaint (ed),
Crossing Boundaries: Cultural, Legal, Historical and Practice Issues in Native Title (2004). See

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