Noongar, Native Title, Linguistic evidence: a small celebration before the night

The cause for celebration is Justice Murray Wilcox’s finding that Noongar people have ‘native title’ to certain parts of the Perth Metropolitan area (Federal Court (Bennell v State of Western Australia [2006] FCA 1243), Perth, 19 SEPTEMBER 2006).
The pursuit of native title (like the Snark) has cost heaps and caused much grief. But when native title is recognised, it’s great, and when the value of linguistic evidence in determining it is recognised, this is also great. Wilcox’s findings have lots of interesting things to say about Noongar language, what the claimants said, and the expert linguistic evidence provided by PARADISEC’s Nick Thieberger.

Wilcox finds:

The evidence indicates that Noongar people have continued, since sovereignty, to occupy, use and enjoy those parts of the lands and waters of the claim area to which they have had legal access. It will, therefore, be appropriate to make a determination of a non-exclusive right (at least) to occupy, use and enjoy the claimed land and waters of the Perth Metropolitan Area (excluding all off-shore islands and waters below low-water mark).

‘Native title’ consists of a bundle of rights to land which are intended to translate in a way that makes sense to Australian law, the relationship between Indigenous Australians and the land. To have it recognised, groups of indigenous people have to apply to the Australian Courts and argue that they descend from the original owners of the claimed land, have a continuing attachment to that land, and have laws and traditions relating to land use that have been passed on from before the European invasion.
Language often plays a role in determining native title (HENDERSON, JOHN and NASH, DAVID (eds.) 2002. Language in native title. Native Title Research Series. Canberra: Aboriginal Studies Press). One reason is that nineteenth century word-lists often give some indication of what language was spoken in a place, and if the claimants still speak some of the language, this is an indication of their historical connection with that place. They can also suggest that a particular area was occupied by a single group, speaking one language. Linguistic evidence (including expert evidence from Frances Kofod) was important in the ‘Miriuwung Gagerrong case’ where claimants were found to have native title (Western Australia and Ors v Ward and Ors (2000) 170 ALR 159).
Two decisions relating to native title that many people found shocking involved groups who still speak Pitjantjatjara or Yankunytjatjara, and whose lands were only taken over by Europeans in the early twentieth century. Both groups had fine linguists offering expert testimony (Cliff Goddard and Peter Sutton). In the case of the Yulara decision, Justice Sackville found against the claimants, even though they had been found a few years earlier to have Aboriginal freehold title for the surrounding land (which requires similar evidence of ownership and traditional laws) (Jango v Northern Territory (No 4) (2004) 214 ALR 608. 23).
In the case of the De Rose Hill pastoral lease, Justice O’Loughlin found that the claimants did not have native title because they had left the pastoral lease 20 years ago, had only been back to hunt kangaroos, and had suffered a breakdown in tradition since they’d left. Justice O’Loughlin said:

The evidence showed [the owner of the pastoral lease JHS]…was mostly well disposed towards his Aboriginal workers and their families, but …would not hesitate to physically assault people…He would not tolerate Aboriginal people who wished to visit friends and relatives…living on the station…[O]nly those who worked for him and their families were, in his assessment…, entitled to be on “his property”….[H]e would not hesitate to resort to the occasional use of firearms to make his point…Even allowing for his shooting of the [Aboriginal people’s] dogs, his conduct was not such as to justify a claim from the resident Aboriginal people that he was the cause of them having to leave their land. (De Rose v State of South Australia [2002] FCA 1342)

(O’Loughlin’s decision was modified on appeal in a Full Bench appeal decision of the Federal Court – one of the judges was Murray Wilcox. (De Rose v State of South Australia (No 2) [2005] FCAFC 110)
This was some of the background to Wilcox’s decision in the Noongar case. If two groups who still spoke their language, carried on traditional ceremonial life, and lived in the remote parts of Australia couldn’t prove native title, what hope did the Noongar have of claiming land in a boom-town city after two hundred years of occupation?
Well, Wilcox’s judgment shows a great deal of refreshing common sense. Rather than complaining that every single claimant couldn’t show unbroken genealogical descent to ancestors at the time of the invasion, he writes:

While the evidence does not permit me to make a positive finding in relation to the claim of any particular witness, it is highly unlikely that all the claims are wrong. After all, we know some thousands of Aborigines lived in the Perth Metropolitan Area at date of sovereignty. In the ordinary course, those people would now have hundreds of thousands of living descendants. Nineteenth century families (Aboriginal and non-Aboriginal) were usually large. There was a high rate of infant mortality and European settlement must have resulted in loss of Aboriginal lives and forced dispersal of Aborigines to other areas; but it seems most unlikely that the wider Noongar community contains no descendant of any of them.

Uncommon common sense!
Nick Thieberger provided linguistic evidence about the Noongar language, about the historical sources on the association of the language with the areas of land under claim, the Noongar dialects and the differences between Noongar and the neighbouring languages.
Wilcox summarises both the expert linguistic evidence and the claimants’ comments on their language use and that of their parents, (which is interesting reading itself, as they talk about singing songs, about telling stories, about announcing oneself to the country, about word order, as well as the way language developed in contact with English) . And here are Wilcox’s conclusions:

As appears from the Aboriginal evidence I have summarised, the oral tradition of south-west Aborigines is that there is, and always has been, only one indigenous language in the south-west; that language is called ‘Noongar’ and is still spoken by many of them.
[…] Dr Thieberger expressed a firm opinion that, in 1829, there existed a common language, although with dialectical differences, throughout the claim area. He expounded his reasons. Although Dr Thieberger was cross-examined at length, his opinion was neither challenged nor explicitly contradicted by other evidence. I thought him to be an impressive witness: knowledgeable, careful and fair.
[…] I conclude that the evidence about language in the claim area provides significant, although not decisive, support for the Applicants’ claim that, in 1829, there existed a single community throughout the claim area.

The last line of Wilcox’s findings is also terrific:

In short, it would seem to be desirable for the parties to engage in some serious thought and discussion before any of them spends more money on legal action.

So what does our Prime Minister say? Does he congratulate the Noongar on having kept community and culture alive for 180 years since invasion? Does he indicate a desire to heed Wilcox’s final remark? No. Here comes the dark night:

“My initial reaction is one of considerable concern,” he said.
“I know that the judge has said that the grants of freehold and almost certainly leasehold will have extinguished native title claims. Many people will regard it as somewhat incongruous – there could still be some residual native title claim in a major settled metropolitan area. We will consider our own position in relation to an appeal.”

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