4. Witnessing Climate Justice, First Nations Experts and ‘Cultural Evidence’
The inclusion of First Nations custodians as experts in relation to the effects of climate change on their traditional lands poses new and important challenges for the law of evidence in Australia.
While the UEL incorporates a specific exception that allows members of an Aboriginal or Torres Strait Islander group to offer opinions about the existence or content of their own traditional laws and customs (s 78A), it has not been unproblematic in its application. This demarcation within the UEL sets up a boundary between witnesses offering expert opinion and other witnesses who may also be drawing on different forms of ‘specialised knowledge’. And, despite a broadening of the scope of what constitutes ‘specialised knowledge’ in other contexts,[1] we have not yet seen s 79 used to allow an Indigenous witness to give evidence as an ‘expert’. At the same time, s 78A seems also to be underutilised. This exception was explicitly intended to address the anomaly that arose when those who held the relevant knowledge of the law or custom in question could not offer an opinion about the content and nature of those laws and instead had to rely on anthropologists or linguists to speak for them. Notwithstanding the scope of s 78A, we continue to see Aboriginal or Torres Strait Islanders characterised as lay witnesses rather than witnesses possessing a cultural expertise.[2]
As custodians of an oral cultural tradition without documentary evidence in support, one of the most significant issues in relation to the admissibility of First Nations expertise is the rule relating to hearsay. Indeed, the Australian Law Reform Commission (‘ALRC’) has noted that the central problem continues to be ‘the discord between the rationale underpinning the hearsay and opinion rules in the common law system and the [First Nations] oral tradition of knowledge’.[3] In Mabo and Others v Queensland (No. 2) (‘Mabo No. 2’),[4] Eddie Mabo’s testimony about the laws and customs of the Meriam people resulted in over 300 ‘hearsay’ objections, based on the fact that the source of his knowledge was information passed on to him by his grandfather.[5]
The native title case of De Rose v State of South Australia (‘De Rose’),[6] heard in the Federal Court in 2013, provides another example of the evidentiary problems associated with oral histories. In De Rose, O’Loughlin J had to consider whether the statement ‘this is your grandmother’s country’, told to a witness by a now deceased First Nations person, was admissible under the UEL as evidence that the grandmother was in fact from that particular country. Deciding that the statement was inadmissible under the hearsay rule, O’Loughlin J went on to explain that official birth certificates exist as proof of place of birth and that as such, oral evidence would not suffice. The problem is that for many First Nations people from remote areas there are no written records of their birth, and oral evidence is the only evidence that exists. Almost every aspect of First Nations history and culture faces this same problem, magnified by the centuries and even millennia through which cultural knowledge and practices have been transmitted.
The FCA considered the problems of hearsay evidence in relation to historical claims of First Nations witnesses in Mary Yarmirr and Others v The Northern Territory of Australia and Others.[7] In his decision, Olney J confirmed that ss 73(1)(d) and 74(1) of the UEL relating to evidence of reputation concerning history and family relationships, and of reputation concerning the existence, nature or extent of a public or general right, enable a court to have regard both to the evidence of witnesses who have recounted details concerning relationships and to traditional practices that have been passed down to them by way of oral history, as well as to matters recorded by ethnographers and other observers.
However, the ALRC points out that these provisions may not always be sufficient to allow the admission into evidence of oral histories and accounts, because this type of evidence may not readily fit within the categories of admissible hearsay in the UEL.[8] For example, there may be disputes about whether particular evidence is of ‘reputation concerning’ a ‘general right’, in the terms of s 74(1), if it is only a building block in showing the rights of a group of First Nations people in respect of certain land.
Other countries (eg Papua New Guinea) have dispensed with the need for strict legal proof when it comes to matters of custom,[9] and the ALRC has suggested that allowing for flexibility and informality might be the best way to ensure that evidence law fulfils its mission of enabling relevant information into the trial.[10]
An interesting recent example of this flexibility is demonstrated by the 2022 decision, in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors,[11] for the Queensland Land Court to hear, for the first time, from First Nations witnesses ‘on Country’, and further, also for the first time, to follow First Nations protocols when doing so. The Court travelled to remote areas in Queensland to hear directly from traditional custodians of the land regarding the impacts that climate change is having on the lives and futures of First Nations peoples.[12] Ultimately the court rejected the application to build a new coalmine on the basis that the mine’s contribution to climate change would amount to an unjustified limit on a number of human rights, including the right of First Nations peoples in respect of their culture and traditional lands. Another sign of change is found in Gloucester Resources, where the court found that the social impact assessment at the centre of the Minister’s decision-making process was substantially deficient because of its failure to incorporate First Nations’ firsthand opinions about impacts of the project on First Nations culture and wellbeing.[13]
KEY QUESTIONS
- Could Aboriginal and Torres Strait Islander ecological knowledge — for example, observations of long-term environmental changes — be considered a form of ‘specialised knowledge’ under s 79? If not, what are the consequences of excluding this perspective from expert evidence?
- Given the centrality of oral transmission in First Nations cultures, should the hearsay rules in the UEL be amended or interpreted more flexibly to accommodate oral histories as reliable evidence? How do decisions like Mabo (No. 2) and De Rose illustrate the shortcomings of current hearsay exceptions in this context?
- In Munkarra v Santos NA Barossa, the applicants sought to present some of their evidence by way of song and dance evidence (this is referred to as a demonstration in the judgment (see s 53, UEL). This application was refused (though the applicants were permitted to tender video evidence). Do you think that the rules of evidence should be amended to encourage courts to permit evidence from Indigenous witnesses to be adduced in alternative forms and modes?
- For example, the recognition of investigators with no training, qualifications or demonstrated proficiency as ‘ad hoc’ experts allowed to offer their opinions about the identity of a person in CCTV footage, or a speaker in a surveillance recording. ↵
- See, eg, Munkarra v Santos (No. 3) [2024] FCA 9. See also Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (‘Gloucester Resources’). The social impact assessment was found by the court to be substantially deficient because of its failure to incorporate First Nations firsthand opinions about impacts of the project on First Nations culture and wellbeing (see paras 340–52). ↵
- ALRC, Uniform Evidence Law Final Report (2006) ch 19 at n 16. ↵
- (1992) 175 CLR 1. ↵
- On the other hand, in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, where a major objection to the expert evidence was its hearsay basis, Blackburn J argued that as long as the opinion evidence was based on expertise and not purely on hearsay statements made to the expert by First Nations people, it was admissible. ↵
- [2013] FCA 988. ↵
- (1998) 156 ALR 370. ↵
- ALRC (n 3) ch 19 para 28. ↵
- Ibid para 627. ↵
- Ibid. ↵
- Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No. 5) [2022] QLC 4. ↵
- The Court ultimately decided that the substantial risks posed by a new coalmine to the human and cultural rights of the First Nations peoples in Queensland were unjustified and recommended against the granting of the mining licence in question. See Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No. 6) [2022] QLC 21. ↵
- Gloucester Resources paras 340–52. ↵
Aboriginal and Torres Strait Islander peoples are the first peoples of Australia, meaning they were here for thousands of years prior to colonisation. Current research confirms that Aboriginal and Torres Strait Islander peoples have lived on the Australian continent for upwards of 60,000 years. While estimates vary, this figure represents the most widely accepted timeframe based on available evidence. Australia is made up of many different and distinct Aboriginal and Torres Strait Islander groups, each with their own culture, language, beliefs and practices. Aboriginal people come from the mainland of Australia and its surrounding islands. The Torres Strait region is located between the tip of Cape York and Papua New Guinea and is made up of over two hundred islands. First Nations is a collective term that refers to Indigenous peoples of a nation, region or place. Indigenous peoples refers to the people with historical and ancestral ties to a place that pre-date colonisation, and is the term used by the United Nations in its Declaration on the Rights of Indigenous Peoples. All these collective terms can be used respectfully. As proper nouns, all should be used with a capital letter.
s 79 (commonly referred to as the expert opinion exception (though the section does not actually use the term ‘expert’), is an exception to the exclusionary rule in s 76. It allows certain witnesses to offer opinion evidence, subject to the threshold questions of relevance (discussed above), where the witness possesses ‘specialised knowledge based on training, study or experience’ and the opinion is ‘wholly or substantially based on’ that specialised knowledge. The recent High Court decision in Lang v The Queen [2023] HCA 29 has, arguably, unified the approach for all Australian jurisdictions, by relying on the UEL framework in a case from Queensland (one of the remaining common law jurisdictions). While cases have held that the (specialised) knowledge, ‘“connotes more than subjective belief or unsupported speculation. The term applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”’ (see Re Tang [2006] NSWCCA 167, [138] quoting Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)), Australian courts have rejected arguments that s 79 should be interpreted to include an expectation that the expert opinion has to be shown to be reliable or trustworthy before it is admitted.
As Indigenous laws in Australia are handed down, generation to generation, in the form of oral history, testimony about the content of those laws would be contrary to both the rule against hearsay and the rule against opinion evidence. Section 78A of the UEL is an attempt to overcome these dual problems in relation to evidence about customary indigenous laws in Australia. The general rule established in s 76 is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed. Section 78A states that an opinion expressed by a member of an indigenous group about the existence or non-existence, or the content, of the traditional laws and customs of that group, may be admissible as evidence of the existence of that traditional law or custom.
