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The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title

Published online by Cambridge University Press:  24 January 2025

Alexander Reilly
Alexander Reilly*
Affiliation:
Faculty of Law, Murdoch University
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Extract

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. “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.' 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.” 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.

Type
Research Article
Information
Federal Law Review , Volume 28 , Issue 3 , September 2000 , pp. 453 - 475
Copyright
Copyright © 2000 The Australian National University

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Footnotes

*

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.

References

1 Carter, P, Road to Botany Bay (1987) at xvGoogle Scholar.

2 For accounts of the destruction of the Tasmanian Aboriginal people, see for example, Travers, R, The Tasmanians: 7he Story of a Doomed Race (1968)Google Scholar; Turnbull, C, Black War: the Extermination of the Tasmanian Aborigines (1948)Google Scholar. For a recent re-examination of this history, see Reynolds, H, Fate of a Free People (1995)Google Scholar. See also Walker, J B, Early Tasmania (1902)Google Scholar, Davies, D, The Last of the Tasmanians (1973)Google Scholar, Ling Roth, H, Aborigines of Tasmania (1968)Google Scholar, Clark, J, The Aboriginal People of Tasmania (1983)Google Scholar, 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.

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 tl1e application of tl1e 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 Fulcher, J “Sui Generis Histo1y? The Use of Histmy in Wik” in G Hiley (ed) The Wik Case: issues and implications (1997)Google Scholar.

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.

12 Wik Peoples v Queensland (1996) 187 CLR lat 180 per Gummow J.

13 Mabo v Queensland (No 2) (1992) 175 CLR 1.

14 These requirements closely resemble the definition of Bremmn J in Mabo. (1992) 175 CLR 1 at 58: “Native Title has its origin in and is given content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory. The nature and incidents of native title must be ascertained as a matter of fact by reference to those laws and customs.”

15 Ward (1998) 159 ALR 483; Yorta Yorta [1998) FCA 1606; Delgamuukw v British Columbia (1998) 153 DLR (4th) 193; Mabo v Queensland (No 2) (1992) 175 CLR 1; Native Title Act 1993 (Cth), s 223.

16 Brennan J acknowledged that ascertaining this conneclion “may present a problem of considerable difficulty”: Mabo (1992) 175 CLR 1 at 58.

17 See A Curthoys, “The Proof of Continuity of Native Title: An Historical Perspective”, Australian Institute of Aboriginal and Torres Strait Islander Studies, Native Title Research Unit (Issues Series Paper no 18 of 1997). Choo, C and Hollbach, S, “The Role of the Historian in Native Title Litigation” (1999) 4(17) Indigenous Law Bulletin 7Google Scholar.

18 Ritter, D, “Whither the Historians: the Case for Historians in the Native Title Process” (1999) 4(17) Indigenous Law Bulletin 4 at 4Google Scholar.

19 Bird Rose, D, “Histories and Rituals: Land Claims in the Territory” in B Attwood (ed), In the Age of Mabo (1996)Google Scholar.

20 B Attwood (ed), ibid at xvi.

21 See for example, M Foucault, “Nietszche, Genealogy, History” in Language, Counter-Memory, Practice (1977); White, H, Tropics lif Discourse: Essays in Cultural Criticism (l978)Google Scholar; Thomas, N, Out lif Time: History and Evolution in Anthropological Discourse (1989)Google Scholar; Lowenthal, D, The Past is a Foreign Country (1985)Google Scholar; Attwood, B, The Making of the Aborigines (1989)Google Scholar and above n 19; K Neumann, N Thomas and H Ericksen (eds), Quicksands: Foundational Histories in Australia and Aotearoa New Zealand (1999).

22 B Attwood, ibid at 148-149.

23 B Attwood (ed), above n 19.

24 The findings of Lee J have been the subject of an appeal to the Full Court of the federal Court: Western Australia v Ward (2000) 170 ALR 159; [2000] FC:A 191.

25 (1998) 159 ALR 483 at 501 (references omitted).

26 Ibid.

27 Ibid at 502.

28 Western Australia v Ward (2000) 170 ALR 159.

29 Ward v Western Australia (1998) 159 ALR 483 at 511.

30 Ibid at 514.

31 Ibid at 513.

32 Ibid at 514.

33 Ibid at 514-523.

34 Ibid at 515, referring to Kaberry, P M, Aboriginal Women: Sacred and Profane (1939)Google Scholar.

35 Ibid at 519, quoting DrShaw, B, My Country of the Pelican Dreaming (1981) at 35Google Scholar.

36 Ibid at 519, quoting from DrShaw, B, Countrymen (1986) at 84CrossRefGoogle Scholar.

37 Ibid at 519-520, quoting Dr B Shaw, ibid at 54.

38 Ibid at 520 (emphasis added).

39 Such as linguistic and archaeological evidence.

40 (1998) '159 ALR 483 at 542.

41 Ibid at 502.

42 Ibid at 526.

43 Ibid at 544.

44 Ibid at 543-544.

45 Ibid at 532.

46 Ibid at 520. Dr Green was a historian called by the respondents, the State of Western Australia.

47 The work of Ms Kaberry.

48 The work of Dr Shaw.

49 Yorta Yorta (Federal Court of Australia, Olney J, 18 December 1998, unreported); [1998] FCA 1606 at [3] (quoting Brennan Jin Mabo (1992) 175 CLR 1 at 59-60), [19], [126] and (129].

50 Ibid at [3].

51 Ibid at [22] (emphasis added).

52 Ibid at [22].

53 Ibid at [106].

54 Ibid at [26].

55 Ibid at [36].

56 N Case suggests that it is not so much a tide as a “tsunami”: “The Tide of Histo1y or Tsunami” (1999) 17(4) Indigenous Law Bulletin 17.

57 Yorta Yorta (Federal Court of Australia, Olney J, l8 December 1998, unreported); [1998] FCA 1606 at [104].

58 Ibid at [105-119] and [122-127].

59 Ibid at [106].

60 Ibid at [122].

61 Ibid at [123].

62 N Case, above n 56 at 17-18.

63 Yorta Yorta (Federal Court of Australia, Olney J, 18 December 1998, unreported); [1998] FCA 1606 at [129].

64 Thomas, J, “Heroic and Democratic Histories: Pioneering as a Historical Concept” (1996) 2 UTS Review 58 at 59Google Scholar.

65 Curr, E, Recollections of Squatting in Victoria (1883) at 52Google Scholar.

66 Ibid at 52.

67 Ibid at 87. See also at 92-93: “What struck me, on first acquaintance, was their freedom from all the business cares and responsibilities of the white man—they constantly reminded me of children.”

68 Ibid at 86.

69 Ibid at 436. See also at 179, “Since that day [on the Moira] some five and thirty years only have passed, and Blacks, reeds, and bell-birds are gone. Of the first, scarce one remains; his cooey is heard no more in those parts.”

70 Yorta Yorta (Federal Court of Australia, Olney J, 18 December 1998, unreported); [1998] FCA 1606 at [111] quoting from pages 243-244 of Recollections.

71 Ibid at [111].

72 For example, above n 69.

73 [1998] FCA 1606 at [106].

74 Ibid at [53] and [106].

75 Ibid at [110].

76 For example, ibid at [113]; Ward (1998) 159 ALR 483 at 515-520.

77 P Carter, “Footings: The Mythopoeic Foundations of Imperial Time” in K Neumann, N Thomas and H Ericksen (eds), above n 21 at 56.

78 See B Attwood, above n 19 at xx: The “hegemonic narrative of dying out”. See generally, L Hercus and P Sutton, This is What Happened: Historical Narratives by Aborigines (Australian Institute of Aboriginal Studies, c1986).

79 (1951) 83 CLR 1.

80 Ibid at 196 per Dixon J, cited in Heydon, J D, Cross on Evidence (6th Aus ed 2000) at 127Google Scholar.

81 (1985) 159 CLR 70.

82 Ibid at 142 per Brennan J.

83 Lee and Olney JJ share this confidence in their judgments.

84 B Attwood, above n 19 at xxviii.

85 For example, M Foucau It, above n 21.

86 Curthoys, A Docker, J, “Is History Fiction?” (1996)2 UTS Rev 12 at 19Google Scholar.

87 Native Title Act ·1993 (Cth), s 82(3).

88 Native Title Amendment Act 1998 (Cth), s 82(1).

89 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141.

90 Heydon, J D, Cross on Evidence (6th Aus ed 2000)Google Scholar; Ligertwood, A, Australian Evidence (3rd ed 1998)Google Scholar. The same gap exists in the other major textbooks: Palmer, A, Principles of Evidence (1998)Google Scholar; Waight, P Williams, C R, EvidenCt': Commentary and Materials (5th ed, 1998)Google Scholar.

91 See for example, Polyukovich v Commonwealth (1991) 172 CLR 501.

92 Delgamuukw u British Columbia (1997) 153 DLR (4th) 193 at 230.

93 Mabo v Queensland [1992] 1 Qd R 78 at 86 per Moynihan J.

94 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J.

95 Shaw v Wolf (1998) 83 FCR 113 at 124.

96 Muecke, S, “Experimental History? The 'Space' of History in Recent Histories of Kimberley Colonisation.” (1996) 2 UTS Rev I at 4Google Scholar.

97 Ibid.

98 B Attwood, above n 21 at 140. See also Report of the Royal Commission on Aboriginal Peoples (1996), vol 1 Looking Forward Looking Back at 33, quoted in Delgamuukw v British Columbia (l997) 153 DLR (4th) 193 at 231.

99 B Attwood, above n 21 at 143.

100 Delgamuukw (1997) 153 DLR (4th) 193 at 232.

101 J D Heydon, above n 90 at 44.

102 Commonwealth v Yarmirr (1999) 168 ALR 426 at 503.

103 Delgamuukw v British Columbia (1997) 153 DLR (4th) 193. See also R u Van Der Peet (1996) 137 DLR (4th) 289.

104 Delgamuukw (1997) 153 DLR (4th) 193 at 239.

105 Ibid at 232.

106 Wik (1996) 187 CLR 1 at 183 per Gummow J.

107 Yorta Yorta (Federal Court of Australia, Olney J, 18 December 1998, unreported); [1998] FCA 1606 at [106].

108 For example, H Reynolds, The Other Side of the Frontier: Aboriginal Resistance to the European Jnz,asion of Australia (1982); The Law of the Land (1987); Dispossession: Black Australians and White Invaders (1989). Reynolds was quoted extensively in Mabo, for example, (1992) 175 CLR 1 at 107 per Gaudron and Deane JJ and at 181 per Toohey J.

109 D Ritter, above n 18 at 4.

110 Ibid.

111 The discipline must incorporate “a body of knowledge or experience which is sufficiently organised … to be recognised to be accepted as a reliable body of knowledge or experience”: R v Bonython (1984) 38 SASR 45 at 46-47 per King CJ, reproduced in JD Heydon, above n 90 at 8"12. Jn relation to the specialised knowledge of anthropologists, see Daniels v Western Australia (Federal Court of Ausb·alia, Nicholson J, 26 June 2000, umeported); [2000] FCA 858 at [24].

112 The expert opinion must be able to assist the court “to form a sound judgment…without the assistance of witnesses possessing special knowledge or experience in the area”: R v Bonython (1984) 38 SASR 45 at 46-7 per King CJ, reproduced in JD Heydon, above n 90 at 812.

113 See for example, Yarmirr u Northern Territory (l998) 156 ALR 370 at 397-400 per Olney J.

114 See for example, Milirrpum v Nabalco Pty Ltd (1970) 17 FLR 141 at 161.

115 Federal Court of Australia, Nicholson J, 26 June 2000, unreported; [2000] FCA 858.

116 Milirrpum v Nabalco (1970) 17 FLR 141.

117 Yarmirr v Northern Territory (1998) 156 ALR 370.

118 Ward v Western Australia (1998) 154 ALR 483.

119 Yarmirr v Northern Territory (1998) 156 ALR 370 at 400 (64] per Olney J.

120 For example, Daniels v Western Australia (Federal Court of Australia, Nicholson J, 26 June 2000, unreported); [2000] FCA 858 at [34].

121 Yarmirr (1998) 156 ALR 370 al 400 [64] per Olney J; Ward (1998) 154 ALR 483 at 531 per Lee J; Milirrpum (1970) 17 FLR 141 at “161 per Blackburn J.

122 (1998) 43 NSWLR 364.

123 Ibid at 371.

124 Ibid

125 Lee J made reference to one of the reports of Dr Choo: T!Vard u Western Australia (1998) 154 ALR 483 at 520.

126 See generally, D Ritter, above n 18.

127 See generally, JD Heydon, above n 90 at 126-128.

128 B Attwood, above n 19 at xxviii.

129 Choo, C and Bollbach, S, “The Role of the Historian in Native Title Litigation” (1999) 4(17) Indigenous Law Bulletin 7 at 8Google Scholar.

130 D Ritter, above n 18 at 4.

131 A Curthoys, above n 17; C Choo and S Hollbach, above n 129 at 8.

132 For accounts of the destruction of the traditional culture of Tasmanian Aboriginal people see, for example, R Travers, above n 2; C Turnbull, above n 2. For a more recent and more detailed re-examination of this histo1y, see H Reynolds, above n 2.

133 R Travers, above n 2 at 167: “Arthur's plan was simple. A great cordon of troops and civilian auxiliaries would march from north, west and south, gradually closing on the narrow land-bridge of the Tasman Peninsula.” However, “not a single Tasmanian entered the lrap” (at 177).

134 Ibid at 219.

135 Ibid at 210-211.

136 Ling Roth, H, Aborigines of Tasmania (1968) at 4CrossRefGoogle Scholar.

137 Ibid at 5.

138 Ibid at 6.

139 R Travers, above n 2 at 220. The story of the exhumation of Lanney's body, the desecration of his grave and the removal of his head occupies more space in Robert Traver's histo1y than does his life.

140 Ibid at 226-231.

141 H Reynolds, above n 2 at 5.

142 See generally Ryan, L, The Aboriginal Tasmanians (1996) at 222-256Google Scholar.

143 Taylor, R, “All I Know is History': Memory and Land Ownership in the Dudley District, Kangaroo Island” (1999) 5 UTS Rev 6Google Scholar.

144 L Rvan, above n 142 at 253.

145 Australian Bureau of Statistics, Australia Now: a Statistical Profile, “Indigenous Population”, http://www.abs.gov.au/.

146 L Ryan, above n 142 at 263-289.

147 H Reynolds, above n 2 at 5.

148 M Mansell in “The Last Tasmanian”, Monday Conference, 4 September 1978, transcript, Sydney, ABC, 8 in L Ryan, above n 142 al 261.

149 M Dodson, “The end in the beginning: re(de)fining Aboriginality” (The Wentworth Lecture) (1994) 1 Australian Aboriginal Studies 2 at 7.

150 Shaw u Wolf (1998) 83 FCR 113 al 125.

151 Ibid.