Yulara and Future Expert Reports in Native Title Cases

Australia's Native Title Act 1993 (Cth) allows Indigenous Australians to lay claims to traditional country located on unalienated Crown land. The Act also admits claims to compensation for the loss of traditional country that has been appropriated and made subject to freehold or other forms of tenure. The Yulara case discussed here was historically important. It was the first case mounted to determine appropriate compensation for the extinguishment of native title. In a compensation claim, the Indigenous applicants must first establish that (taken together) they are both (i) the rightful heirs to ancestral holders of native title and (ii) that they still maintain the traditions and customs of their forebears (phase 1). Once their holding of native title has been established at law, the applicants may then enter their claim to monetary compensation for the 'extinguishment' of their native title over designated lands (phase 2). In the Yulara case, it was found that the applicants were not constituted as a group of recognisable native title holders whose rights to country were rooted in those traditional laws and customs that obtained when the Yulara lands were officially brought under the dominion of British authorities 'at sovereignty' (1824). The case could not, therefore, proceed to a hearing of the compensation phase. Eight issues concerning the proper performance of the anthropologist as expert witness in native title matters were raised by the trial judge in the Yulara case. This paper deals with the bearing of the judge's observations on those anthropological representations that may be made in future native title cases.