'Competing narratives' versus 'interest based negotiations' and the bar of evidence (original) (raw)

Abstract

This paper considers the different evidentiary requirements for establishing native title during litigation and negotiation.

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References (26)

  1. The opinions expressed in this paper are solely the author's and are not endorsed by the South Australian Crown Solicitor's Office, where the author is employed.
  2. Mabo v Queensland (No. 2) (1992) 175 CLR 1.
  3. Government of South Australia, Consent Determinations in South Australia: A Guide to Preparing Native Title Reports, Crown Solicitor's Office, Adelaide, 2004; Government of Western Australia, Guidelines for the Provision of Information in Support of Applications for a Determination of Native Title, Office of Native Title, Perth, 2004; Queensland Government, Guide to Compiling a Connection Report for Native Title Claims in Queensland, Department of Natural Resources and Mines, Brisbane, 2003.
  4. This comment was made during discussions as part of a workshop organised by the Australian Institute of Aboriginal and Torres Strait Islander Studies and the National Native Title Tribunal in 2007, which resulted in the publication of Rita Farrell, John Catlin & Toni Bauman, Getting Outcomes Sooner: Report on a Native Title Connection Workshop Barossa Valley July 2007, National Native Title Tribunal, Perth, and Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra, 2007.
  5. See, for example, the implicit significance O'Loughlin J appears to have given to claimants being involved in Christianity in De Rose v State of South Australia [2002] FCA 1342 and the more explicit significance attached to a petition by Yorta Yorta people in an attempt to obtain land in the 19th century in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58.
  6. Munn v Queensland [2001] 115 FCR 109 at [29]; see also Smith v State of Western Australia [2000] 104 FCR 494 at [38] and Thudgari People v State of Western Australia [2009] FCA 1334 at [25] for similar comments.
  7. See comments made by Barker J in Thudgari People v State of Western Australia [2009] FCA 1334.
  8. See, for example, Frances Morphy, 'Performing law: The Yolngu of Blue Mud Bay meet the native title process', in Benjamin Smith & Frances Morphy (eds), The Social Effects of Native Title: Recognition, Translation, Coexistence, ANU E Press, Canberra, 2007.
  9. For example, John Phillips, Advocacy with Honour, Law Book Company Ltd, Sydney, 1985.
  10. Lord Reid in Rondel v Worsely [1997] 1 QB 433 in G E Dal Pont, Lawyers' Professional Responsibility in Australia and New Zealand, 2nd edn, LBC Information Services, Sydney, 2001, p. 445. anthro_mono.indb 122 18/05/10 4:40 PM
  11. Keith Tronc & Ian Dearden, Advocacy Basics for Solicitors, Law Book Company Limited, Sydney, 1993, p. 23.
  12. Lee v The Queen (1998) 195 CLR 594 in David Ross, 'Criminal law practice: Defending Aboriginal people', Criminal Law Journal vol. 31, 2007, p. 340.
  13. In my experience of working with barristers, an essential skill of a good barrister is to be fully convinced of the superiority of their own narrative over that of the other side. This skill can leave the barrister impermeable to any evidence that may go against their argument.
  14. Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In, Penguin Books, New York, 1981.
  15. Roger Fisher & Scott Brown. Getting Together: Building Relationships as We Negotiate, Penguin Books, New York, 1988.
  16. Richard Dawkins, The Selfish Gene, Oxford University Press, Oxford, 1976.
  17. Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 (Yorta Yorta HC).
  18. See Francesca Merlan, Caging the Rainbow: Places, Politics and Aborigines in a North Australian Town, University of Hawai'i Press, Honalulu, HI, 1998.
  19. In the Yorta Yorta case the trial judge and subsequent courts considered a petition of 1881 as strong evidence for the cessation of laws and customs from that point onwards. In the petition, 42 Aboriginal people, ancestors of the Yorta Yorta claimants, sought a grant of land to pursue agricultural activities. See, for example, Members of the Yorta Yorta Aboriginal Community v State of Victoria [2001] FCA 45 (Yorta Yorta FC), paragraphs [185]-[187].
  20. Yorta Yorta FC, above n 21, paragraph [50].
  21. Yorta Yorta HC, above n 19, at [49].
  22. Peter Sutton, Native Title in Australia: An Ethnographic Perspective, Cambridge University Press, Cambridge, 2003, p. 6.
  23. For example, Alfred R Radcliff-Brown, 'The social organization of Australian tribes', Oceania vol. 1, no. 1, 1930, pp. 206-46; William E H Stanner, 'Aboriginal territorial organization: Estate, range, domain and regime', Oceania vol. 36, no. 1, 1965, pp. 1-26.
  24. See, for example, North J in Lovett on Behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 and Barker J in Thudgari People v State of Western Australia [2009] FCA 1334.
  25. Native Title Act 1993 (Cth), s 223.
  26. Roy Wagner, The Invention of Culture, Prentice Hall, Englewood Cliffs, NJ, 1975.