Linguists  and  Native  Title    

John  Henderson  2002  

 pp.  311-­‐315  in  

 Language  in  Native  Title  

John  Henderson  and  David  Nash  (eds)  Aboriginal  Studies  Press:  Canberra  

ISBN:  0  85575  388  9    

       

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LINGUISTS AND NATIVE TITLE

John Henderson Linguistics, University of Western Australia

This paper presents a survey of the involvement of linguists in native title claims. Of course, expertise in language matters in native title is not restricted to linguists. Anthropological reports often discuss relevant issues of language, at least with regard to identifying native title holding groups. Expert evidence has in some cases been given by people who have formal training and/or expertise in both anthropology and linguistics. A few are recognised as both linguist and anthropologist, some are primarily recognised as anthropologists and others primarily as linguists. For convenience, the term linguist is used in this paper to include people who have academic qualifications and/or substantial expertise in linguistics, regardless of whether they might also, or even primarily, describe themselves as anthropologists.

Linguists have been formally involved in applications for native title determinations in a number of ways:

1. preparing written statements or expert reports for submission to the court or tribunal as evidence on behalf of either the applicants or the respondents, and

a. which are actually submitted to the court, or

b. which do not end up being submitted to the court.

2. giving viva voce evidence in court, usually as an expert witness under contract to either the applicants or the respondents but occasionally under/after subpoena.

3. preparing confidential written reports for lawyers for either the applicants or the respondents, but not submitted to the court as evidence,

a. written peer reviews of drafts of reports of type (1 ), prepared for the same side

b. written responses to reports of type (la) prepared for the other side.

Linguists have also, of course, played less formal roles . Informal discussions with others preparing expert reports have often contributed to those reports, and their published work on language is often cited in anthropological reports.

312 Henderson

The list below shows native title claims in which expert evidence has been given by linguists. 1 Some of this type of information is not easily available, so this list should not be taken to be complete. Details are given on any written reports where possible.

The list only covers involvement that is a matter of public knowledge, that is, when evidence is presented to a court. It is well known that linguists have prepared confidential reports in many cases, and these are not limited to peer reviews, but the contracts under which these reports are prepared typically require confidentiality. In most cases, the linguist is unable to publicly acknowledge even the fact of having prepared the

7 . report.-

Applications for determination of native title in which linguists have presented expert evidence

Alice Springs claim, formally Hayes v Northern Territory (1999) FCA 1248.

John Henderson - viva voce evidence and written statement under contract as a consultant to the Central Land Council, acting for the applicants .

Davenport-Murchison claim, formally Alyawarr Kaytetye Warumungu Wakaya Native Title Claim Group v the Northern Territory of Australia and Others , FCA DG 6002 of1998

Harold Koch- viva voce evidence (2001) and written report:

1999. Language relations in the Davenport-Murchison Native Title Application Area.

Central West Goldfields claim.

David Nash - written report (2001) prepared under contract to the Goldfields Land Council, acting for the applicants.

1 Thanks to those colleagues who responded to a request for information: Nick Evans, Amanda Lissarague, Janet Sharp, Nick Thieberger, David Nash, Brett Baker and Alan Dench. Other information shown here is extracted from published reasons for judgement or from the other articles in this book.

2 If the linguist also gives evidence to a court as an expert witness (viva voce or in a report), it seems to me that there is a fundamental conflict between the requirements of the Federal Court Guidelines for Expert Witnesses (see Sutton, this volume) and the contractual requirement for confidentiality in relation to reports which are not submitted in evidence, at least for reports which are not peer reviews.

Linguists and Native Title

Congoo vs State of Queensland (2001) FCA 868

Bruce Sommer ('Anthropologist and Linguist') and Elaine Sommer - written report 'prepared on behalf of the Bar­Barrum people' (2001, FCA 868).

Cosmo Newbery case.

Nicholas Thieberger - written report m support of the application:

2000. Linguistic Report to the Ngaanyatjarra Council. (49pp)

313

Croker Island Sea Claim, formally Mary Yarmirr and Others vs Northern Territory of Australia and Others (1998, 156 ALR 370) (hearings commenced 1996)

Nicholas Evans - written report [deals with linguistic matters] and viva voce evidence on behalf of the claimants. See Evans (this volume).

1997. Linguistic background to the area of application and the languages of the applicants. Appendix 2 [pp. 17] to N. Peterson & J. Devitt, 'A Report in Support of an Application for Recognition of Native Title to Areas of Sea by the Mangalara, Mandilarri-Ildugij , Murran, Gadura, Mayarram, Managa and Ngaynjaharr of the Croker Island Region.'

Daniels case, formally Daniels & Others for the Ngarluma People, Monadee & Others for jh.e Yindjibarndi People, Holborow (nee Cosmos) & Others for the Yaburara & Mardudhunera Peoples and Dale & Others for the Wong-Goo-Tt-Oo People v The State Of Western Australia & Others. Federal Court of Australia WAG 601 7 of 1996 and part of WAG 127of1997 and part of WAG 6256of1998.

Alan Dench - written statement (prepared by the Crown Solicitor for Western Australia) and viva voce evidence (August 2000) after subpoena.

De Rose Hill case (SA), formally Federal Court of Australia application SG6001/96

Cliff Goddard - viva voce evidence (August 2001 ).

Dunghutti case, formally Buck on behalf of the Dunghutti people v. New South Wales, Federal Court of Australia NG 6002 1996 (unreported; judgement 7 April 1997).

Amanda Lissarrague - written report in support of the application:

314 Henderson

Report on the Dhangadi Language prepared on 12 September, 1995. (Lissarrague, pers. comm.)

Karajarri case (WA).

Janet Sharp - viva voce evidence (2001 ).

Miriuwung-Gajerrong case, formally Ben Ward & Others v State of Western Australia & Others ( 1998) 159 ALR 483.

Frances Kofod - 'report prepared by a consultant linguist' (Ex A36) and viva voce evidence in support of the application. See Mcintyre and Doohan (this volume).

Bruce Sommer - written report on behalf of the respondents: 'prepared by linguist Dr BA Sommer, prepared in response to, and as a comment on, Ms Kofod's report ... (Ex 54). Dr Sommer was not called to provide oral evidence to add to his report, which differed from the report of Ms Kofod more in emphasis than substance.' ( 1998, 159 ALR 483 ).

NgarlumaNindjibamdi case.

Nicholas Thieberger - viva voce evidence and written report:

1999. Linguistic evidence in support of the Ngarluma/Yindjibamdi Native Title Claim. (60pp)

Peak Hill case, formally David Towney v the Minister for Land and Water Conservation, Federal Court of Australia NG 6001 of 1995.

Tamsin Donaldson - written report. See Donaldson (this volume).

1998. The Language of the Peak Hill Aboriginal People. Report prepared under direction from the New South Wales Aboriginal Land Council (NSW ALC).

Rubibi case, formally Rubibi Community & Anor v The State of Western Australia & Others (2001) FCA 607

Mark Clendon - 'linguistic report'.

Wellesley Island Sea Claim, formally The Lardil, Kaiadilt, Yangkaal and Gangalidda Peoples v State of Queensland and others QG 207 (hearing commenced 1998)

Nicholas Evans - viva voce evidence and written reports:

1998. The Kaiadilt people. Anthropologist's report to the Carpentaria Land Council, Queensland. [pp. 149) [Deals with ethnographic matters, but includes a lot of linguistic material. (Evans, pers.comm.)]

Linguists and Native Title

Penelope Johnson. 1998. Kaiadilt Genealogies, prepared for the Carpentaria Land Council. Pp 17 + vi.

Wik case (Qld).

Kenneth Hale- 1997 report, 80pp. See Sutton (this volume).

315

Y orta Y orta case, formally The members of the Yorta Yorta Aboriginal Community and The State of Victoria and Others in the Federal Court of Australia, VG 600 l of 1995.

Heather Bowe - viva voce evidence and written reports. See Bowe (this volume).

1997 a Language issues relating to the Y orta Y orta land claim. Report submitted on behalf of the claimants in the Native Title case: The members of the Yorta Yorta Aboriginal Community and The State of Victoria and Others in the Federal Court of Australia, VG 6001 of 1995 Exhibit A70.2 (36pp)

l 997b Response by Heather Bowe to report of Bruce A Sommer filed by the State of New South Wales. Federal Court of Australia, VG 6001of1995 Exhibit A70.4.(10pp)

1997c Response by Heather Bowe to report of Marie Fels -Ancestral lands from Bangerang to Y orta Y orta. Federal Court of Australia, VG 6001of1995 Exhibit A70.3.(lp)

Sommer Bruce - viva voce evidence and written reports:

1997a Yoda Yoda: Language and Territoriality: Report of Bruce A. Sommer filed by the State of New South Wales. Federal Court of Australia No. VG 6001 of 1995. (39pp)

l 997b Supplementary Report of Bruce A. Sommer filed by the State of New South Wales. Federal Court of Australia No. VG 6001 of 1995. (27pp)