The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title
| Author | Alexander Reilly |
| DOI | 10.22145/flr.28.3.4 |
| Date | 01 September 2000 |
| Published date | 01 September 2000 |
| Subject Matter | Article |
THE
GHOST
OF
TRUGANINI:
USE
OF
HISTORICAL
EVIDENCE
AS
PROOF
OF
NATIVE
TITLE
Alexander
Reilly*
History
is
a
fabric
woven
of
self-reinforcing
illusions.
1
INTRODUCTION
In
numerous
histories
of
Aboriginal
peoples
in
Tasmania
written
up
to
the
1970s,
the
image
of
Truganini, in western
clothes
seeing
out
her days,
is
the visible presence
of
extinction.
2
"Her last
years
were
comfortable,
it
seems,
but
there
was
a
shadow
over
them-her
fear
of
the
body-snatchers
and mutilation
after
death...
'Don't
let
them
cut
me
up
she
begged
the
doctor
as
she lay
dying.
'Bury
me
behind
the
mountains.'
3
The
histories
end with
romantic
philosophical
musings
over
the
inevitable demise
of
Tasmanian Aborigines.
"The
Tasmanians were
hurried
and
harried
from
the
face
of
this earth
by
the
poison
of
European
contact
and
the
sword
of
destruction.
Unable
to
merge
with
the
European
colonists,
unable
to
withstand
them,
they
perished."
4
The
histories
present
a
natural
and
irrefutable
closure.
There
are
no
Tasmanian
Aborigines.
The
advent
of
native
title
law
has
brought
with
it
a
new
interrogation
of
the
history
of
Aboriginal
people
in
Australia.
The
claims
process
has
produced
new
ethnographic,
anthropological
and
historical
interest
in
indigenous
history
and
culture.
Historiographies
of
Aboriginal
life
in
remote
parts
of
Australia
are
being
presented
to
the
Federal
Court
for
the first
time.
The
Court
is
required
to
construe
and
summarise
historical evidence,
and
use
the
summaries
as
part
of
the
basis
of
native
title
determinations.
The
summaries
of
historical evidence
are
themselves
new histories
*
BA
(Juris)
(Adel),
LLB
(Ions)
(Adel),
LLM
(British
Columbia), Faculty
of
Law,
Murdoch
University.
The
author
wishes
to
thank
Gary
Meyers,
Kathy
Trees,
Sarah
Kelly
and
the
anonymous
referee
for
their
valuable
comments
on
earlier
drafts
of
this
article.
1
P Carter,
Road
to
Botany
Bay
(1987)
at
xv.
2
For accounts
of
the
destruction
of
the
Tasmanian
Aboriginal
people,
see
for
example,
R
Travers,
The
Tasimanians:
7he
Story
of
a
Doomed
Race
(1968);
C
Turnbull,
Black
IVar:
the
Extermination
of
the
Tasmanian
Aborigines
(1948).
For
a
recent re-examination
of
this
history,
see
1-
Reynolds,
Fate
of
a
Free
People
(1995).
See
also
J B
Walker,
Early
Tasmania
(1902),
D
Davies,
The
Last
of
the
Tasnianians
(1973),
H
Ling
Roth,
Aborigines
of
Tasmania
(1968),
J
Clark,
The
Aboriginal
People
of
Tasmania
(1983),
Aboriginal
and
Torres
Strait Islander
Commission,
Aboriginal
People
of
Tasmania
(1991).
3
C
Turnbull,
ibid
at
235-236.
4
D
Davies,
above
n
2
at
231.
Federal Law
Review
which
become
the
official
story
of
the
claim
region.
The
Court
engages
in
this
process
without
expertise
in
the
use
of
historical materials.
Usually,
the
rules
of
evidence
limit
judicial
discretion
in
the use
of
materials
in
evidence.
In
relation
to
native
title
determinations,
these
rules
are
necessarily
circumscribed
to
allow
for
the
possibility
of
proving
a
claim.
Establishing
a
native
title
claim
requires
proof
of
past
and
continuing
connections
to
the
land.
Given
these
parameters, proof
of
title
is
impossible
without
recourse
to
materials
that
would
be
inadmissible
under
traditional
rules
of
evidence.
5
There
is,
however,
a
danger
of
using
otherwise
inadmissible material, such
as
historical evidence,
to
overstate the extent
of
the
destruction
of
Aboriginal
traditional
life,
and
to
misrepresent
the
form
and
substance
of
Aboriginal
laws
and
customs.
In
doing
so,
native
title
trials risk
becoming
a
perpetuation
of
the
colonialism
that
they
were
supposed
to
overcome.
Historical
material
has
also been
used
in
relation
to
the
extinguishment
of
title
by
inconsistent
State
and
Commonwealth statutory grants.
In
Wik
Peoples
Z
Queensland
historical
materials were
used
extensively
to
help
construe the
terms
of
pastoral
leases
passed
into
law
during
the
19th
century.
In
the
course
of
his
judgment,
Gummow
J
expressed
concern
at this
use
of
historical
materials.
7
In
Anderson
v
Wilson,8
the
Full
Court
of
the
Federal
Court
was
invited
to
revisit
the
use
of
historical
materials
in
Wik
and
to
draw
different
conclusions
from the
material.
The
majority
refrained from
doing
so
on
the
ground that
it
was
bound
by
Wik.
9
Although
the
use
of
historical materials
in
relation
to
extinguishment
raises
substantially
the
same issues
as
in
relation
to
proof
of
title, this
paper
is
limited
to
considering
issues
of
proof.
This article
first
establishes
what
historical evidence
is,
how
it
is
used
in
native
title
trials
as
proof
of
title,
and
what
its
relationship
is
to
oral
testimony
and
anthropological
evidence.
The article
then
analyses
the use
of
historical
evidence
in
two native
title
determinations
in
the
Federal
Court,
Ward
(on
behalf
of
the
Miriuwung
and
Gajerrong
people)
v
Western
Australia
10
and
Members
of
the Yorta Yorta
Aboriginal
Conunnity
v
Victoria.
11
The
paper
points
out
similarities and
differences
in
the use
of
historical
evidence
by
the trial
judges
in
each
case.
Third,
the
paper
critically
analyses
the extensive reliance
of
Olney
J
on
Edward
Curr's
Recollections
of
Squatting
in
Victoria
and
explores
more
generally
how
misuse
of
historical
evidence
perpetuates
........................................................................................................................................................................................................
5
In
1998,
an
amendment
to
the
Native
Title
Act
1993
(Cth)
significantly
altered
the
application
of
the rules
of
evidence
in
native
title
litigation.
Section
82(3)
of
the
original
Act
stated,
"The
Court,
in
conducting proceedings,
is
not
bound
by
technicalities,
legal
forms
or
rules
of
evidence".
Section
82(1)
of the
Act
as
amended
stated,
"The
Federal
Court
is
bound
by
the
rules
of
evidence,
except
to
the
extent
that
the
Court
otherwise
provides".
Whether
or
not
this
amendment
will
have
an
impact
on
the
evidence accepted
in
native
title
trials
depends
on
the
attitude
of
the
Court
to
the
importance
of
oral
and expert
testimony
in
proving
native
title.
If
this
change
of
approach
to
the
application
of
the
rules
of
evidence
is
applied
strictly by
the
Court,
historical
evidence
will
rely
for
its
admissibility
on
the
strict
rules
of
evidence.
6
(1996) 187
CLR
1.
7
Ibid
at
182-183
per
Gummow
J.
See
also
J
Fuicher
"Sui
Generis
Histoy?
The
Use
of
History
in
Wik"
in
G
Hiley
(ed)
The
IVik
Case:
Issues
and
Implications
(1997).
8
(2000)
171
ALR 705.
9
Ibid
at
718.
10
(1998)
159
ALR
483.
11
Federal
Court
of
Australia,
Olney
J,
18
December
1998,
unreported.
[1998]
FCA
1606.
Volume
28
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