FEDERAL COURT OF AUSTRALIA

Jango v Northern Territory of Australia (No 2) [2004] FCA 1004

EVIDENCE – compensation claim under the Native Title Act 1993 (Cth) – expert anthropological report – Evidence Act 1995 (Cth) s 79 – admissibility of paragraphs in report

Native Title Act 1993 (Cth) ss 50, 61, 82

Evidence Act 1995 (Cth) ss 55, 56, 59, 60, 76, 79, 80, 135, 136

Aboriginal Land Rights Act 1976 (Cth) s 50

Harrington-Smith v Western Australia (No 7) [2003] FCA 893 followed

Commonwealth v Yarmirr (2001) 208 CLR 1 cited

HG v The Queen (1999) 197 CLR 414 cited

Daniel v Western Australia (2000) 178 ALR 542 cited

Neowarra v Western Australia (2003) 205 ALR 145

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 cited

Ward v Western Australia (1998) 159 ALR 483 cited

English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415 cited

Borowski v Quayle [1966] VR 382 cited

Wigmore on Evidence (3^rd ed)

I Freckelton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (2^nd ed, 2002)

JOHNNY JANGO & ORS v NORTHERN TERRITORY OF AUSTRALIA & ORS

DG 6023 of 1998

SACKVILLE J

CANBERRA (HEARD IN SYDNEY)

3 AUGUST 2004

RULING ON EVIDENCE

1                     I am hearing an application pursuant to ss 50(2) and 61(1) of the Native Title Act 1993 (Cth) (‘NTA’) for a determination of compensation.  The application relates to all land within the town of Yulara, the boundaries of the town having been established by proclamation in the Australian Government Gazette on 10 August 1976.  The applicants accept that native title rights and interests in the land have been extinguished, but say that they are entitled to compensation pursuant to provisions of the NTA.

2                     The hearing commenced at Yulara on 21 October 2003 and has occupied some 30 days of Court time spread over nine months.  A further week of hearings is scheduled to commence in Melbourne on 9 August 2004.  This time has been set aside to take the evidence of authors of reports on which the applicants wish to rely.  The matter was listed by me in advance of the scheduled hearing in order to address objections to the admissibility of two of the reports.

the reports

3                     The first is entitled ‘Yulara Anthropology Report’, prepared by Professor Peter Sutton and Ms Petronella Vaarzon-Morel.  Professor Sutton describes himself as an ‘independent scholar and consultant’, although he apparently holds a position at the University of Adelaide.  Professor Sutton’s academic qualifications are in linguistics and anthropology and he has published widely in those fields.  Professor Sutton has held positions in universities and other institutions as an anthropologist.

4                     Ms Vaarzon-Morel describes herself as an ‘independent consultant anthropologist’.  She has a Master’s degree in anthropology from Indiana University.  Ms Vaarzon-Morel has prepared anthropological reports on behalf of claimants in a large number of land claims and other legal proceedings involving Aboriginal people, although she has relatively few publications.

5                     The structure of the Yulara Anthropology Report, which comprises 364 pages, is summarised in Chapter 1, as follows:

‘1.2              Chapter 1 (“Introduction”) introduces the authors, outlines the history of our research on the present report, discusses our information sources, and lists the conventions we have used…

1.3                  Chapter 2 (“Aims and summary findings”) contains a summary of our instructions and the methods we have used, and summarises the report’s contents.

1.4                  Chapter 3 (“Occupational history”) looks at the evidence for historical occupation of the wider study area by Aboriginal people, and discusses the questions of migration and succession in relation to the continuity of customary entitlements to country…

1.5                  Chapter 4 (“Territorial groups in the literature”) examines existing ethnographic literature on territorial identity groupings for the wider study area…

1.6                  Chapter 5 (“Tenure in the literature”) summarises and discusses various models of Western Desert land connection systems as presented by other scholars, with an emphasis on those who worked closest to the wider study area.  The order is chronological.  For an assessment of most of these authors as scholars or observers, see Chapter 1 under “Sources”.

1.7                  Chapter 6 (“Rights and rules through time”) discusses traditional rights in land and waters in the wider study region, and the customary laws on which their realisation is based.

1.8                  Chapter 7 (“Interest-holding sets through time”) outlines relevant normative rules for social and local organisation in the wider study area, from sovereignty to the present day.  This chapter includes examples of sets of persons who have or had strong traditional connections to the inner study area, as a means of making concrete our model of criteria for strength of connection and the nature of the claimant group…

1.9                  Chapter 8 (“Values of the Yulara block”) presents a brief account of the cultural values of the Yulara block…’

The Report also includes nine appendices, which run for well over 6,000 pages.

6                     The second report has been prepared by Dr Jon Willis.  Dr Willis has academic qualifications in sociology and anthropology.  Among the various positions he has held, Dr Willis worked as a Community/Park Liaison Officer at Uluru-Kata Tjuta National Park from 1989 to 1997.  In that capacity he came to know the named applicants in the current proceedings.  Dr Willis’ report is a relatively modest 85 pages in length.  (A third report, entitled ‘Yulara History Report’ is 312 pages in length.) 

7                     Pursuant to directions made by the Court, the first respondent (‘the Northern Territory’) and the third respondent (‘the Commonwealth’) have filed their objections.  Depending upon how one counts, the respondents have made at least 1,100 separate objections to passages in the two reports.  This falls short of the 1,426 objections recorded by Lindgren J in Harrington-Smith v Western Australia (No 7) [2003] FCA 893, but the objections taken in that case were to thirty separate reports.

8                     The volume of objections does not necessarily indicate that the reports do not comply with the rules of evidence.  However, it is apparent that each of the reports, in particular the Yulara Anthropology Report, has been prepared with scant regard for the requirements of the Evidence Act 1995 (Cth) (‘Evidence Act’).

9                     This is not a new phenomenon.  In Harrington-Smith (No 7), Lindgren J complained that many of the experts’ reports tendered in that case had made little or no attempt to address in a systematic way the requirements for the admissibility of expert opinion.  In response to his Honour’s complaint, counsel protested that compliance with the requirements of the Evidence Act would require lawyers to become involved in the writing of expert reports and would also require the experts to depart from the way they were accustomed to write.  Lindgren J dealt with this protest in the following way (at [19]):

‘Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed.  In the same vein, it is not the law that admissibility is attracted by nothing more than the writing of a report in accordance with the conventions of an expert’s particular field of scholarship.  So long as the Court, in hearing and determining applications such as the present one, is bound by the rules of evidence, as the Parliament has stipulated in subs 82(1) of the NTA Act, the requirements of s 79 (and s 56 as to relevance) of the Evidence Act are determinative in relation to the admissibility of expert opinion evidence.’  (Emphasis in original.)

10                  Lindgren J’s observations, with which I record my strong agreement, are consistent with comments made in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Commonwealth v Yarmirr (2001) 208 CLR 1.  Their Honours noted (at 62 [84]) that an anthropological report had been received in evidence in that case without proof and without objection

‘despite it being a document which was in part intended as evidence of historical and other facts, in part intended as evidence of expert opinions the authors held on certain subjects, and in part a document advocating the claimants’ case.’ 

Their Honours said that although the mixing of the disparate elements, without any evident delineation between them, had not ultimately led to insuperable difficulties in the case, it was a ‘practice which has obvious difficulties and dangers’.

11                  Like some of the reports discussed by Lindgren J in Harrington-Smith (No 7), the Yulara Anthropology Report often does not clearly expose the reasoning leading to the opinions arrived at by the authors.  Nor does it distinguish between the facts upon which opinions are presumably based and the opinions themselves.  Indeed, it is often difficult to discern whether the authors are advancing factual propositions, assuming the existence of particular facts, or expressing their own opinions.  Certainly the basis on which the authors have reached particular conclusions is often either unstated or unclear.

12                  There are other features of the Yulara Anthropology Report that are worthy of comment.  The Report records that Professor Sutton carried out 245 days of ‘desk research and non-ethnographic interviews’ between March 1999 and February 2002.  He undertook a further 52 days of ‘ethnographic field work’ between April 1999 and May 2002.  Ms Vaarzon-Morel carried out 153 days of desk research and non-ethnographic interviews and undertook 47 days of field work over much the same period.  It is difficult to avoid the conclusion that this apparently very large investment of time in the preparation of expert reports is attributable, at least in part, to a failure to define their task with precision and due regard to the laws of evidence.

13                  The vagueness of the task appears from the authors’ account of their ‘initial instructions’, which were apparently given in late 1998 or early in 1999.  According to the Report they were required to undertake the following work:

‘.     archival research and reviews of relevant published and unpublished source materials;

 .    ethnographic fieldwork;

 .    compilation of site information (to facilitate the production of a site map or maps);

.      compilation of genealogical information (to facilitate the production of genealogies);

 .    provide advice in relation to relevant cultural and gender restrictions applicable to the information gathered during the course of our research and fieldwork; and

 .    prepare an expert anthropological report based on our research and fieldwork.’

14                  It appears that it was not until February 2003, some four years after the initial instructions, that the authors received supplementary instructions designed to direct their attention to particular questions that might be thought relevant to the issues in dispute.  Even then, so far as appears from the Report, the authors were not informed of the requirements of s 79 of the Evidence Act concerning the admissibility of expert evidencenor of the need, for example, to identify clearly expressions of opinion and to present material in a form which allows the Court to determine whether the opinions are wholly or substantially based on specialist knowledge derived from training, study or experience: HG v The Queen (1999) 197 CLR 414, at 427 [39], per Gleeson CJ.

15                  It is evident from the Yulara Anthropology Report that each author spent considerable time interviewing the applicants and other indigenous people who have given evidence in the proceedings.  This appears to be the bulk of the ‘field work’ undertaken by them.  There is an obvious risk that much of this effort duplicated the work undertaken (so I infer from what I have been told) by lawyers in preparing written statements from Aboriginal witnesses to be tendered at the hearing.  I do not dispute that there may be circumstances in which an anthropologist uses his or her special knowledge to express opinions based, in part, on information provided by people who are themselves to give evidence in the proceedings.  Nonetheless, it is by no means clear to me why it was apparently thought necessary for the anthropologists to carry out such extensive interviews of witnesses and potential witnesses for the purpose of preparing their Report.

16                  I appreciate that the developing nature of the law of native title has not made it easy for legal practitioners to identify the precise questions requiring analysis in a native title claim (or a case, such as the present, raising similar issues).  But the principal problem with the Yulara Anthropology Report is not that recent High Court jurisprudence has required the experts to address questions different from those to which their attention was originally directed.  The problem relates to the form of the Report and the manner in which the questions identified in it are addressed.

17                  I should make it clear that I am not suggesting that the time devoted by Professor Sutton and Ms Vaarzon-Morel to the preparation of the Yulara Anthropology Report was disproportionate to the tasks they were asked to undertake.  Nor am I disputing that the work undertaken by the authors may have been valuable for purposes other than the preparation of the Report itself.  My criticism is of a process that produces extremely lengthy reports, the forensic utility of which is limited by a failure to comply with the rules of evidence.

18                  Mr Parsons SC, who appeared for the applicants, frankly acknowledged that the Yulara Anthropology Report and, to a lesser extent, Dr Willis’ report failed, in important respects, to pay sufficient regard to the requirements of the Evidence Act.  He attributed this deficiency to practices that have grown up in claims made under the Aboriginal Land Rights Act 1976 (Cth) (‘Land Rights Act’) and have persisted in the preparation of expert evidence for claims made under the NTA.  According to Mr Parsons, it has been common for parties to rely upon discursive expert reports that have been prepared without assistance from lawyers and therefore with little regard to the requirements of the Evidence Act.

19                  I have no reason to doubt Mr Parsons’ account of the practices that have been followed in Land Rights Act and native title claims.  However, it is important to bear in mind that claims under the Land Rights Act are heard by an Aboriginal Land Commissioner who makes recommendations to the relevant Minister (s 50(1)(a)).  The Commissioner does not exercise the judicial power of the Commonwealth and is not bound by the rules of evidence.  Moreover, until 1998, s 82(3) of the NTA provided that the Court hearing native title claims ‘was not bound by technicalities, legal forms, or rules of evidence’.  It would therefore not be surprising if the rules of evidence were not applied to experts reports prepared for Land Rights Act claims or for claims under the NTA heard before the 1998 amendments came into force: cf Daniel v Western Australia (2000) 178 ALR 542, at 549 [26], per RD Nicholson J.

20                  However, the Native Title Amendment Act 1998 (Cth) substituted a new s 82 in the NTA.  Section 82(1) now provides that the Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.  If there was a practice of the kind referred to by Mr Parsons, it should have ceased with the enactment of the new s 82 of the NTA (except, perhaps, in the unlikely event of the Court dispensing completely with the rules of evidence applicable to experts’ reports).  Certainly, the practice of tendering a report containing undifferentiated statements of facts, expressions of opinion and advocacy of a claimants’ case should not have survived the observations of the High Court in Commonwealth v Yarmirr.

The LEGISLATION

21                  A number of authorities have now identified and analysed the provisions of the Evidence Act particularly relevant to the admissibility of anthropological reports in native title cases: see, for example, Daniel v Western Australia (RD Nicholson J); Neowarra v Western Australia (2003) 205 ALR 145 (Sundberg J); Harrington-Smith (No 7) (Lindgren J).

22                  The starting point is s 56 of the Evidence Act, which states that, except as otherwise provided, evidence that is relevant in a proceeding is admissible in a proceeding (s 56(1)).  Evidence that is not relevant is inadmissible (s 56(2)).  The test of relevance is whether the evidence, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding (s 55(1)).

23                  Part 3.3 of the Evidence Act deals with opinion evidence.  Section 76(1) states the opinion rule:

‘Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.’

24                  Section 79 provides for the admissibility of what is generally known as expert evidence.  It provides as follows:

‘If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.’

25                  Section 80 states that evidence of an opinion is not inadmissible only because it is about:

‘(a)  a fact in issue or an ultimate issue; or

(b)    a matter of common knowledge.’

26                  It follows from ss 56 and 79, as Lindgren J pointed out in Harrington-Smith (No 7), at [20], that in order to establish the admissibility of expert opinion, it must be shown:

‘(a)      that the opinion is relevant (including [a requirement] that the field of knowledge is one in which expert opinion can properly be called (see Cross on Evidence (Australian edn) at [29050]) (Evidence Act ss 55, 56);

(b)        that the person put forward as an expert possesses specialised knowledge in that field (Evidence Act s 79);

(d)        that the specialised knowledge is based on the person’s training, study or experience (Evidence Act s 79); and

(e)        that the particular opinion tendered is based on the specialised knowledge (Evidence Act s 79).’

27                  It is also necessary to bear in mind the hearsay rule, stated in s 59 of the Evidence Act as follows:

‘(1)  Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

 (2)  Such a fact is in this Part referred to as an asserted fact.’

Section 60 creates an exception in the following terms:

‘The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.’

28                  Part 3.11 of the Evidence Act confers on the Court discretions to exclude evidence.  Part 3.11 includes the following provisions:

‘135.      The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a)      be unfairly prejudicial to a party; or

(b)      be misleading or confusing; or

(c)       cause or result in undue waste of time.’

136.             The Court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:

(a)     be unfairly prejudicial to a party; or

(b)     be misleading or confusing.’

the objections

29                  To make the task of ruling on the respondents’ objections more manageable, I invited Mr Hughston SC (who appeared with Dr Perry for the Commonwealth) and Mr Pauling QC (who appeared with Ms Kelly for the Northern Territory) to select a limited number of representative objections, the rulings on which might be expected to cover similar objections. I indicated that I would give rulings on the representative objections with a view to the parties considering their application to other sections of the reports.  As events transpired, Mr Parsons conceded that virtually all of the objections were well-founded.  Accordingly, I have to rule on only one of the objections identified by the respondents.  I think it appropriate, nonetheless, to record the objections and the consequences of the concessions made by Mr Parsons.

OBJECTIONS TO THE YULARA ANTHROPOLOGY REPORT

Objections Accepted as Well-Founded

30                  I address first the objections to the Yulara Anthropology Report.  The objections acknowledged by Mr Parsons to be valid are explained below.

Paragraph 3.46

31                  In par 3.46, the authors summarise, in tabular form (Table 8), records of the presence of Aboriginal people near the Yulara area over the period 1830 to 1979.  It is said in the Report that ‘some of this material is based on estimated birth dates or similar educated guesswork’.  Table 8 incorporates some references to particular authors, but it is not clear what published or unpublished works or records have been used to compile the material.

32                  Insofar as Table 8 is intended to constitute evidence of the facts asserted therein, the material is not in admissible form.  It does not identify the source or sources for the assertions of fact contained in it and does not clearly distinguish ‘educated guesswork’ from statements that might rest on firmer foundations.  Nor have the applicants as yet assembled and tendered the primary materials from which Table 8 has presumably been derived.

33                  The authorities in this Court support the proposition that s 79 of the Evidence Act does not incorporate the ‘basis’ rule – that is, the common law requirement that for an expert’s opinion to be admissible, it must be based on facts stated by the expert and either proved by the expert or assumed by him or her and proved aliunde.  The common law rule was recently restated by Heydon JA in Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, at 731-732 [64], while the authorities in this Court have been recently analysed by Sundberg J in Neowarra v Western Australia, at 151-155 [16]-[27].

34                  It seems that proof of the facts assumed by an expert in giving his or her opinion goes to the weight that should be accorded to the opinion rather than its admissibility.  Nonetheless, as Sundberg J observed in Neowarra v Western Australia (at 153 [23]) a report should be presented in a form that make it

‘possible for the court to determine whether the opinion is wholly or substantially based on the expert’s specialised knowledge which in turn is based on training, study or experience’.

See also HG v The Queen, at 427 [39], per Gleeson CJ.

35                  It may be that the material in Table 8 is intended to explain or support an opinion expressed elsewhere by Professor Sutton (apparently the author of this section of the Report).  In other words, Table 8 might be intended to set out the facts which Professor Sutton has assumed as the basis for an opinion expressed in the Report.  The difficulty here is that the Report does not link the material in par 3.46 with any expression of opinion by Professor Sutton.  It is therefore not possible to ascertain whether the material in Table 8 might be admissible as stating the basis for an opinion expressed in the Report.

36                  In the event, Mr Parsons did not argue that par 3.46 is admissible in its current form.  It must therefore be rejected.

Paragraph 4.26

37                  Paragraph 4.26 appears in a section of the Report examining certain card entries made by the late Norman Tindale, the long-serving Curator of Ethnology at the South Australian Museum.  The card entries were apparently made during Tindale’s field work in the Mann and Musgrave Ranges carried out in 1933.

38                  In par 4.26, Professor Sutton expresses views about Tindale’s subjective thought processes and the methodology employed by him in compiling the cards.  These views include the unexplained assertion that Tindale had ‘attempted to clean up what appeared to him as anomalies’.  Mr Hughston objected to this material on the ground that the views expressed in par 4.26 amount to unsupported speculation which cannot be seen to be the product of Professor Sutton’s training, study or experience. 

39                  Mr Parsons accepted that the objection to par 4.26 in its present form was well-founded, although (as I understand the position) he wished to leave open an opportunity for Professor Sutton to explain the reasoning underlying his view of Tindale’s work and to link that view to his (Professor Sutton’s) own opinions.  I am prepared to grant leave to the applicants, if so advised, to file a further report or document (or both) addressing these matters.  Of course, the filing of such a report or document will not necessarily cure the defect in par 4.26.

40                  In the light of Mr Parsons’ concession, I reject par 4.26 in its present form.

Paragraphs 5.12 and 5.13

41                  Paragraphs 5.12 and 5.13 refer to ‘personal data cards’ prepared by Tindale in the course of his 1933 field trip and incorporate a table (Table 15) recording birthplaces and ‘totems of parents and offspring’.  The applicants have not tendered the original data cards.

42                  If the applicants intend to rely on Tindale’s material to prove the truth of the information contained therein (assuming the information to be relevant), pars 5.12 and 5.13 do not appear to be in admissible form.  The data cards are not in evidence and the Report does not address the circumstances in which the cards were prepared, nor how Tindale identified ‘totems’.  The difficulty is illustrated by Professor Sutton’s observation in par 5.12 that ‘in most cases the “totems” are Dreamings which visited the birth country of the individual and thus are beings with whom individuals were spiritually identified’.  It is impossible from the Report to assess the significance of Tindale’s work or its reliability for the purposes of proving matters in issue in this case.

43                  If the summary of Tindale’s data cards is intended to support an opinion expressed by Professor Sutton in the Report, it is not clear what that opinion is, and how it is supported by the information recorded in the data cards.  Indeed, in pars 5.14 and 5.15, Professor Sutton seems to disagree with certain views expressed by Tindale by reference to information contained in the data cards.

44                  It is possible that by filing and tendering additional material the applicants will be able to ‘cure’ the deficiencies in pars 5.12 and 5.13.  However, Mr Parsons acknowledged that, in their present form, pars 5.12 and 5.13 are inadmissible.  They must therefore be rejected.

Paragraphs 5.140 to 5.145

45                  In pars 5.140 to 5.145 the authors of the Report summarise points made in a 1985 claim book prepared for the Lake Amadeus land claim.  The claim book has not been tendered.

46                  Once again, if the summary is intended to provide probative evidence of facts asserted in the 1985 claim book, it is inadmissible in form.  If it is intended to provide support for an opinion expressed by the authors of the Report, the opinion is not identified.  Mr Parsons accepted that pars 5.140 to 5.145 in their current form are inadmissible.  They should be rejected.

Paragraph 6.13

47                  Paragraph 6.13 contains several assertions of fact.  These include a statement that there are a number of sites where Wapnampi (Water Serpents) guard water resources against trespass.  It is also said that a particular

‘customary activity is widely known in the region and appears to have been retained in a conservative way over the generations’.

The basis for these assertions is not identified, although it is possible that the authors are relying on information given to them by the claimants or other persons who have given evidence in the proceedings.

48                  In the absence of the source material being identified, Mr Parsons accepted that par 6.13 in its present form is not admissible.  It should therefore be rejected.

Paragraph 6.85

49                  Paragraph 6.85 expresses the view that subject to certain exceptions ‘all people with a traditional connection to the inner study area have the right to hunt and forage across the…area’.  Mr Parsons accepted that the basis for this expression of opinion is not explored and it is therefore not clear whether the opinion is based on Professor Sutton’s specialised knowledge.  Indeed, it may be that Professor Sutton, in substance, is simply recording the views put to him by the claimants in the course of preparation of the Report.  Paragraph 6.85 must be rejected.

Paragraph 6.87

50                  In par 6.86 Professor Sutton states that people with ‘strong traditional connections to the Yulara area and who have the requisite seniority and gender’ assert certain rights.  In par 6.87, he says such people

‘also assert the right to maintain the significance of sites and protect sites by acting with appropriate respect and care when visiting those sites…’

Although par 6.87 is by no means clear, it is apparently intended to convey that a person who asserts the right to protect sites in the Yulara area is likely to have strong traditional connections to the area.

51                  The Northern Territory objected to par 6.87 on the ground, inter alia, that Professor Sutton has failed to identify the sources of information or indeed the information itself upon which the statement is based. 

52                  While, as has been seen, s 79 of the Evidence Act does not incorporate the basis rule, it is unclear whether par 6.87 constitutes an expression of opinion or is intended to constitute a statement of fact probative of the existence of that fact.  Mr Parsons conceded that par 6.87 was not admissible in its present form.  Accordingly, it must be rejected.

Paragraph 7.2

53                  In par 7.1, Professor Sutton asserts that persons with arguable claims over a common area of ‘country’ may be genealogically unrelated to each other.  It is said that the

‘claimants in toto are a person-set rather than a social group of unitary structure in the anthropological sense’.

In par 7.2 Professor Sutton says, inter alia, that those with shared ties to a country usually include persons whose claims on the same area

‘rest on something individual to themselves, such as…knowledge of and hence responsibility for Waparr or Tjukurr(pa) (“Dreamings”), their own birth place, their child’s birth site, their own initiation site, or, in retrospective ascriptions, an antecedent’s burial site, or some combination of these with knowledge and experience’.

54                  The Northern Territory objected to par 7.2 on the ground that it contains an opinion (although not clearly identified as such), but does not identify the facts or observations which form the basis of the opinion.  It is therefore impossible (so the Northern Territory submitted) to determine whether the opinion is wholly or substantially based on the authors’ specialised knowledge, as required by s 79 of the Evidence Act.

55                  Mr Parsons accepted that the objection to par 7.2 in its present form is well-founded.  I therefore reject the paragraph.  If the applicants file a further report or document identifying the statements, observations or facts which form the basis for the conclusions expressed in par 7.2, the paragraph may be rendered admissible.

Paragraph 7.30

56                  In par 7.30, the authors state that people who claim a particular ‘site cluster’ on a Dreaming track may include more distant sites in the track in their country.  The Northern Territory objected to par 7.30 on the same ground as it objected to par 6.87.  Mr Parsons acknowledged that the objection is well-founded.  I therefore reject par 7.30 in its present form.

Paragraph 8.5

57                  Paragraph 8.5 records beliefs as to certain matters expressed by Aboriginal women during Ms Vaarzon-Morel’s fieldwork.  Mr Parsons did not press the paragraph.

Paragraphs 8.69 to 8.101 and 8.103 to 8.107

58                  In these paragraphs Ms Vaarzon-Morel traces the history of site clearances for the development of the Yulara township and makes observations on the process.  The Northern Territory objected on the ground that the opinions expressed in these paragraphs are not based on any specialised knowledge.  Mr Parsons accepted that the objection was well-founded and did not press this section of the Report. 

Appendix 2

59                  Appendix 2 is a document of 1709 pages consisting of site records, in standardised form, for a vast number of sites.  Each page contains provision to record, inter alia, the location (or locations) of the site, the features, the Dreamings for the site, matters of cultural significance and historical notes.  Most pages of Appendix 2 are only partially completed, either because the available information is incomplete or there is no relevant information to record.  The material is, however, stored in electronic form and can be searched.

60                  The Northern Territory objected to Appendix 2 on a variety of grounds if the applicants intend to rely on the material therein as probative of any issue in dispute.  Mr Parsons accepted that Appendix 2 should be treated only as an aide-memoire and that the information recorded could be regarded as probative of any disputed factual matter only if supported by independent evidence.  Mr Pauling and Mr Hughston were content for Appendix 2 to be treated in this way.

61                  Since, however, much of the material in Appendix 2 is likely to be uncontroversial, I have asked the respondents to notify the applicants of any factual matters in Appendix 2 that are in dispute.  When that is done, it may be that the balance of Appendix 2 can be admitted into evidence without objection.

Appendix 3

62                  Appendix 3, which is 43 pages in length, contains information on sacred narratives or ‘Dreaming’ stories.  Details are provided concerning a number of stories relevant to the Yulara area.  Mr Parsons accepted that Appendix 3 is deficient in form as it does not identify the sources for the views expressed and indeed does not make clear whose views are being expressed.  The material in Appendix 3 is therefore not to be regarded as probative of any matter in issue in the proceedings.  It should be rejected in its present form.

Appendix 4

63                  Appendix 4, which comprises 2,111 pages, contains information recorded in standardised form about a very large number of people, some of whom appear to have little or no connection to the current proceedings.  The information includes name or names; date of birth and, where applicable, of death; place of residence; language; parents and other kin; links with Uluru/Kata Tjurta; and biographical notes.  The information is stored in electronic form and thus can be searched easily.

64                  Mr Parsons pointed out, correctly, that Appendix 4 contains information in a form that may prove to be valuable in the preparation of submissions and perhaps of a judgment, if otherwise supported by admissible evidence.  However, he accepted that the material should properly be treated as an aide-memoire, and should not be regarded, of itself, as probative of any factual matter in dispute.

Appendix 5

65                  Appendix 5 consists of computer-generated genealogical charts for the applicants and other Aboriginal persons.  While Appendix 5 includes references to some sources, it does not explain precisely how each chart has been compiled.  Moreover, it appears that few of the sources referred to are in evidence.

66                  In some cases genealogical information has been admitted into evidence: see for example, Ward v Western Australia (1998) 159 ALR 483, at 531-532, per Lee J.  However, Mr Parsons accepted that Appendix 5, in its present form, should not be admitted into evidence.  If the applicants are later able to ‘authenticate’ some or all of the information recorded in the charts and explain why the charts are a product of specialist knowledge, they can renew the tender.

Appendix 8

67                  Appendix 8, comprising 719 pages, contains what is described as archival data.  The ‘data’ comprise summaries of field notes and other material compiled by various researchers.  Mr Parsons accepted that Appendix 8, in its present form, should not be admitted into evidence.  He indicated that the applicants may wish to re-tender some of the material in Appendix 8 if it is shown to be supported by independent evidence or is non-controversial.

A Contested Objection

68                  Ultimately, the applicants resisted only one of the objections to the Yulara Anthropology Report.  This was the objection to par 5.68 of the Report.

69                  Paragraph 5.68 appears in a section of the Yulara Anthropology Report prepared by Ms Vaarzon-Morel, which draws on the work of Dr Nancy Munn.  Dr Munn is an anthropologist who carried out field work in 1964 to 1965 at Areyonga (near what is now the Yulara site).  The Report describes some of the conclusions reached by Dr Munn based on her research with Aboriginal people at the Areyonga settlement, most of whom were Pitjantjatjara form the Petermann Ranges, although some were Ngatjatjara, Yankunytjatjara or Arrernte.

70                  Paragraph 5.68 is as follows:

‘Thus, Munn’s informants used the term ngura gudju (ngurra kutju, “one country”) to refer not just to their ngura but to the hunting and foraging circuits that extended in all directions from their “estate”.  She referred to the circuits of a given group as their “orbit”.  In the sense that the orbits of different groups overlapped so did their countries overlap.  Significantly, an orbit was egocentrically defined “…with its focus in the home country or estate of the particular informant”. Thus:

        One could not…assert that the precise end-points of the orbit of a given local group are clear-cut.  The most one can say is that the further a particular site happened to be from the focus of “anchorage” of Ego’s estate the less likely it was to be included by him at any given him in the listing of sites within his country.’

Paragraph 5.68 includes three footnote references to Dr Munn’s unpublished 1965 report based on her field work.

71                  The Northern Territory objected to par 5.68 on three grounds:

(i)                  Evidence of Dr Munn’s opinion is irrelevant, since she is not being called as an expert witness and will not be subject to cross-examination.

(ii)                To the extent that par 5.68 purports to give evidence of the truth of what Dr Munn was told by her informants, it is hearsay and prima facie inadmissible under s 59 of the Evidence Act.  It is not within the exception in s 60 because the statements by Dr Munn’s informants do not form the basis for Ms Vaarzon-Morel’s opinion, but for Dr Munn’s opinions and constitute second-hand or remote hearsay.  Such hearsay is outside s 60 as proof of the fact intended to be asserted.

(iii)               The material provided to Dr Munn by her informants is not identified in the Yulara Anthropology Report.

72                  Mr Pauling accepted that an expert may refer to the writings of other experts in the field to demonstrate that his or her opinion is not an isolated view.  He also accepted that an expert may give an opinion based on the state of the literature within the area of expertise in question.  However, he submitted that the Report does not show that Ms Vaarzon-Morel has used the information provided to Dr Munn, or Dr Munn’s own opinion, for any permissible purpose.

73                  If an expert can express an opinion only if it is based on knowledge or information which is itself independently proved, serious practical difficulties are likely to arise.  Thus in English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415, Megarry J (at 420) made the following observations about an expert valuer’s opinion:

‘As an expert witness, the valuer is entitled to express his opinion about matters within his field of competence.  In building up his opinions about values, he will no doubt have learned much from transactions in which he has himself been engaged, and of which he could give first-hand evidence.  But he will also have learned much from many other sources, including much of which he could give no first-hand evidence.  Textbooks, journals, reports of auctions and other dealings, and information obtained from his professional brethren and others, some related to particular transactions and some more general and indefinite, will all have contributed their share.  Doubtless much, or most, of this will be accurate, though some will not; and even what is accurate so far as it goes may be incomplete, in that nothing may have been said of some special element which affects values.  Nevertheless, the opinion that the expert expresses is none the worse because it is in part derived from the matters of which he could give no direct evidence.  Even if some of the extraneous information which he acquires in this way is inaccurate or incomplete, the errors and omissions will often tend to cancel each other out; and the valuer, after all, is an expert in this field, so that the less reliable the knowledge that he has about the details of some reported transaction, the more his experience will tell them that he should be ready to make some discount from the weight that he gives it in contributing to his overall sense of values.’

See also Borowski v Quayle [1966] VR 382, at 386-387, per Gowans J (citing Wigmore on Evidence (3^rd ed), vol 2, at 784-785); I Freckleton and H Selby, Expert Evidence: Law, Practice, Procedure and Advocacy (2^nd ed, 2002), at 107 ff.

74                  There seems to be no reason in principle why an anthropologist cannot, in his or her report, identify hearsay material that goes to establish the foundations of the knowledge applied in preparing the report and in forming the particular opinions expressed in the report.  In Daniel v Western Australia, RD Nicholson J, after a review of the authorities, stated (at 551 [30]) these propositions:

‘(7)  Hearsay evidence from which the [expert’s] opinion is inferred, will (subject to the application of ss 135 and 136) qualify for admission pursuant to s 56 as relevant to the purpose of the basis upon which the expert holds the opinion so that its weight can be assessed.  It could then be used for a hearsay purpose as a consequence of the application of s 60.

(8)   Admission of hearsay evidence with that consequence under s 60 leads inevitably to the need for the court to consider whether that admission should be limited under s 136 to the stated purpose of testing the knowledge on which the opinion is based.

(9)   Admission with the consequences flowing from s 60 would not occur if the court considered admission should be precluded in exercise of its discretion under s 135.  It would seem that hearsay evidence comprising a statement as to the existence of native title made to the expert by a party not called (and being on an issue central to the case) would qualify for exclusion or admission limited to testing the opinion in the manner required by s 78.’

Sundberg J cited this passage with approval in Neowarra v Western Australia and summarised (at 159 [38]) the position as follows:

‘Subject to the application of ss 135 and 136, hearsay material on which an expert’s opinion is based will qualify for admission as relevant to the basis upon which the expert holds the opinion (“a purpose other than proof of the fact intended to be asserted by the representation”).  If it qualifies, it can then be used as proof of the fact intended to be asserted.’

75                  It follows that the Summary in the Yulara Anthropology Report of the research work of Dr Munn, insofar as it provides the basis, or one of the bases, for the opinions expressed by the authors of the Report is relevant and, subject to the operation of ss 135 and 136 of the Evidence Act, admissible in evidence.  There may then be a further question as to whether s 60 of the Evidence Act has the effect of admitting the Summary of Dr Munn’s work, notwithstanding its hearsay character, as proof of the facts asserted in that exposition.

76                  The difficulty confronting the applicants is that it is not clear whether the material in par 5.68 of the Yulara Anthropology Report forms the basis, or is said to form the basis, for any opinion expressed by the authors of the Report.  Mr Parsons was unable to identify any opinion or opinions in the Report that are supported by the summary of Dr Munn’s work.  In these circumstances, the foundation for the admissibility of par 5.68 is wanting and there is no occasion to consider the possible application of ss 60, 135 or 136 of the Evidence Act.

77                  If the applicants adduce further material which explains the relationship between the summary of Dr Munn’s work and any opinions expressed in the Report, the tender of par 5.68 may be renewed.

78                  I should add that insofar as the applicants rely on the summary of Dr Munn’s work as proof of the truth of the facts asserted in Dr Munn’s report, it is not admissible for that purpose.  Whether Dr Munn’s report itself can be tendered for that purpose is a matter that has not yet arisen for consideration.

objections to dr willis’ report

79                  The Northern Territory objected to pars 47 and 101 of Dr Willis’ report.  Mr Parsons accepted that the objections to each of these paragraphs is well-founded.  I accordingly reject pars 47 and 101 in their present form.

Associate:   

Dated:          3 August 2004